Mr M Palmer (Counsel) For the v Respondent — 2019

At the preliminary hearing on 16 November 2018, the respondent applied to strike out the claimant's whistleblowing claims and, alternatively, for a deposit order. The claims were pleaded as automatic unfair dismissal and detriment claims arising from alleged protected disclosures. The claimant relied on a written communication of 20 November 2017, an SMS of 7 February 2018, and further oral and written communications said to concern the proposed business structure, related-party and conflict issues, breach of duty concerns, and regulatory exposure.

The tribunal reviewed the authorities on protected disclosures, including the meaning of "information", the need for a reasonable belief, and the caution required before striking out fact-sensitive whistleblowing claims. It referred to ED&F Man Liquid Products Ltd v Patel, Ezsias v North Glamorgan NHS Trust, Cavendish Munro Professional Risks Management Ltd v Gubuld, Western Union Payment Services UK Ltd v Anastasiou, Kilraine v London Borough of Wandsworth, Korashi v Abertawe Bro Morgannwg University Local Health Board, Kraus v Penna Plc, Darnton v University of Surrey, and Ashok Ahir v British Airways. The tribunal emphasised that these issues depended on context and on evidence that had not yet been heard.

On that basis, the tribunal refused both the strike-out and the deposit order applications. It said the 7 February 2018 SMS, and the further information at pages 39 to 40 of the bundle, could not properly be assessed without evidence. It had some sympathy with the respondent's position on the 20 November 2017 email, which appeared to contain the claimant's views rather than clearly conveying information, but said that the surrounding conversations in November 2017 might provide relevant background. The tribunal also noted that the claimant's FCA attestation of 8 January 2018 and evidence in parallel High Court proceedings might undermine aspects of the claim, particularly before 8 February 2018, but those matters should be tested at the merits hearing rather than used to dispose of the claims at a preliminary stage. The claim was allowed to proceed to the six-day full merits hearing listed from 19 February 2019.