Mr Daniel Rogerson v Erhard – Jensen Ontological / Phenomenological Initiative Limited and 1 other — 2023

Mr Rogerson brought claims against both respondents for post-employment detriment after making protected disclosures under s.47B ERA 1996. This preliminary hearing concerned a strike-out application. The claimant appeared in person and the respondents were represented by counsel.

The tribunal held that paragraphs 16(e), 16(f) and 22 of the Particulars of Claim depended on without prejudice letters from the Dr Grisley settlement correspondence. It found the letters remained privileged because there had been no waiver by both parties, applied the without prejudice rule as discussed in Sheeran v Chokri, and struck those paragraphs out as inadmissible.

On time limits, the tribunal accepted that the allegations against the second respondent were out of time, including allegations said to arise on 14 July 2020 and 14 January 2021. It rejected the claimant's explanation that he only realised in June 2021 that he might have a UK whistleblowing claim, noting that he did not explain why he waited until 14 October 2021 to start ACAS early conciliation and finding no basis to conclude that it was not reasonably practicable to present the claims in time. The complaints against the second respondent were dismissed, while the claims against the first respondent were not struck out at this hearing because allegation 16(g) against that respondent was said to be in time and potentially capable of forming part of a continuing act.