Ms. Nichol Consultant For the v Respondent — 2017

At the preliminary hearing on 30 January 2017, Employment Judge Sage sitting alone held that the email dated 1 March 2016 and the related settlement correspondence at pages 109 to 112 were without prejudice and could not be referred to in evidence. The tribunal accepted Ms Wood's evidence that the reference to state pension age was only to correct a factual error in the claimant's correspondence and was part of settlement discussions about quantum. On that basis, and because the claimant identified no other evidence supporting age discrimination, the tribunal struck out the direct age discrimination claim as having no reasonable prospect of success, citing Chandhok v Tirkey [2015] IRLR 195 and the absence of evidence capable of shifting the burden of proof.

The tribunal also refused the claimant's application to amend the ET1 to add a whistleblowing claim for detriment and dismissal under the Public Interest Disclosure Act 1998. It found that the claim form did not plead whistleblowing, that a prior preliminary hearing on 3 June 2016 had recorded that the claimant was not pursuing a protected-act detriment claim, and that the later application of 6 July 2016 introduced a new cause of action. The tribunal held the claim was out of time, the primary time limit had expired on 27 May 2016, and there was no evidence that it had not been reasonably practicable to present the claim in time.

After dealing with those issues, the tribunal recorded that the only remaining claim was constructive unfair dismissal, to be heard later by a judge alone. It also made disclosure and case management orders for the future hearing, including a listed liability and remedy hearing on 20 November 2017. On the respondent's costs application, the tribunal ordered the claimant to pay £450 plus VAT because it found unreasonable conduct in not withdrawing the weak age discrimination claim after Judge Baron had raised concerns and after the respondent had given a costs warning, which meant the matter had to proceed as an in-person hearing.