Miss J Francis v Education Learning Trust — 2023

This was a public preliminary hearing on the respondent's application to strike out, or alternatively to order a deposit for, the claimant's whistleblowing complaints under sections 43B and 47B ERA 1996. The tribunal identified the pleaded case as a protected disclosure complaint even though the claim form did not expressly cite those provisions, and it noted that Employment Judge Johnson had already treated the claim as one about a single disclosure and two alleged detriments.

The respondent argued that the claim had no reasonable prospect of success because the alleged disclosure of 15 March 2023 was, on its face, a private contractual complaint and there was no pleaded basis for a belief that it was made in the public interest. The tribunal rejected that approach, relying on the principles in Chesterton Global v Nurmohamed and the strike-out authorities it cited, and held that the public interest issue was a factual dispute to be determined with the evidence. It accepted that the claimant might be able to rely on evidence about discussions with her trade union and about the Burgundy Book and stress and mental health issues in schools.

The respondent also argued that the two alleged detriments, namely the 21 March 2023 absence meeting and the 30 March 2023 payslip issue, had no realistic prospect of being linked to the disclosure. The tribunal did not accept that either allegation should be struck out or made subject to a deposit. It said the case was not so inconsistent with the contemporaneous material as to justify that course, and that the claimant should be allowed to advance the case on the basis described at the hearing. The tribunal emphasised that it was not deciding that the claims would succeed, only that they were arguable and should proceed to evidence.