Ms C McFarlane v ABC Recruitment & Training Ltd — 2020

This was a remote preliminary hearing on the respondent's application under Rule 37(1)(a) to strike out the claimant's whistleblowing and unfair dismissal claims on the basis that they had no reasonable prospect of success. Employment Judge Tsamados sat alone and refused the application.

The judge recorded that the claimant's case concerned alleged protected disclosures about workplace safety and the response to an assault at the residential home where she worked, including concerns about lack of security, a resident with a machete, a knife stored in an unlocked drawer, and the absence of a landline. The judge considered the claimant's further information and held that the matters described were capable of falling within section 43B Employment Rights Act 1996, with questions of reasonable belief, public interest, the identity of the employer, dismissal, and the alleged detriments all requiring evidence at a full hearing.

Applying North Glamorgan NHS Trust v Ezsias, Anyanwu v South Bank Student's Union, Tayside Public Transport Company Ltd v Reilly, and Mechkarov v Citibank NA, the tribunal concluded that this was not the exceptional type of case in which strike out was justified. The judge also said that issues raised by the respondent about the claimant's remedy position, the correct respondent, alleged deficiencies in particulars, mitigation, disclosure, and the mistaken discrimination recommendation box were not grounds for strike out and were either matters for evidence or case management.