Ms X Ju v The Collective (Living) Limited (In administration) and 1 other — 2023

The claimant brought claims against her employer for unfair and/or constructive dismissal, automatic unfair dismissal (protected disclosure), protected disclosure detriments and breach of contract. After the employer went into administration, Irwell Insurance Company Limited was joined as second respondent so the tribunal could decide, as a preliminary issue, whether Irwell was liable to indemnify the employer under the policy and the Third Parties (Rights against Insurers) Act 2010.

The tribunal held that Exclusion 1 in section 2 of the policy, read with General Condition 1, was a condition precedent to liability. On the evidence from Irwell's witness and the chronology recorded in the advice log, the company had not promptly sought and followed Peninsula's advice at each stage. The tribunal found that the company suspended the claimant against advice and later dismissed her against advice, despite warnings from Peninsula that these steps put cover at risk.

The tribunal also held that Exclusions 4 and 5 in section 2 excluded cover for claims connected with public interest disclosure and for dismissals not within the potentially fair reasons listed in the policy. It concluded that Irwell was entitled to avoid indemnity and was not liable to the claimant as a third party under the 2010 Act. The claim against the second respondent was dismissed; the claim against the first respondent remained stayed.