Case 2409016/2023 · Employment Tribunal

Mr S Swanson, consultant For the v Mr J Lee, in-house counsel — 2024

Case reference: 2409016/2023
Decision date: 30 January 2024
Jurisdiction: England & Wales
Judge: Employment Judge Dunlop. The

Indexed: 23 May 2026

Parties

2 named

Claimant

Mr S Swanson, consultant For the

Respondent

Mr J Lee, in-house counsel

Key findings

Tribunal's reasoning

This was a 27 May 2025 preliminary hearing before Employment Judge Elliott on the respondent's application to strike out the claim or, alternatively, to order deposits. The claimant's pleaded case included constructive unfair dismissal, race and sex discrimination, harassment related to race and sex, victimisation and whistleblowing detriment. After repeated case-management steps, the claimant withdrew factual allegations 6, 10, 11, 12, 16 and 22 as background matters. The tribunal applied rule 38 of the Employment Tribunal Rules of Procedure 2024, rule 40, and the authorities it identified including Cox v Adecco, Anyanwu and Balls.

The tribunal refused to strike out the constructive unfair dismissal claim and the direct discrimination and harassment claims. It held that the evidence about why the respondent moved from saying there was no breach of policy on 29 December 2022 to starting a disciplinary process, and why the claimant was then suspended, needed to be explored at the final hearing. It also held that the claimant was entitled to rely on the same factual allegations under different heads of claim, and that the discrimination claims were fact-sensitive and not suitable for strike out on the material before the tribunal. No deposit order was made in respect of those claims.

The tribunal took a different view on the whistleblowing and victimisation claims. It held that the pleaded material did not sufficiently identify what the claimant said or wrote that tended to show a breach of legal obligation, and that references to retraining, CCTV, GDPR and the claimant saying she felt victimised did not, on the pleadings presented, amount to a qualifying disclosure. It also held that no protected act within section 27 Equality Act 2010 was sufficiently identified. The tribunal therefore said those claims had little reasonable prospect of success and made a separate deposit order in relation to them, while also declining strike out under rule 38(1)(b) and (c).

Claims and outcomes

6 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Constructive dismissal	Strike-out and deposit order refused; the tribunal held that the reasons for the investigation, suspension and alleged breach of trust and confidence needed to be tested in evidence.	Other	—	—
Race discrimination	Strike-out and deposit order refused; the tribunal held that the same factual allegations could be relied on under this head and that the reason for the disciplinary process and suspension required evidence.	Other	Race	—
Sex discrimination	Strike-out and deposit order refused; the tribunal held that the same factual allegations could be relied on under this head and that the reason for the disciplinary process and suspension required evidence.	Other	Sex	—
Harassment	Strike-out and deposit order refused; the tribunal held that the harassment allegations were fact-sensitive and should be tested at the final hearing.	Other	—	—
Victimisation	Strike-out refused, but the tribunal found little reasonable prospect of success and made a separate deposit order; it held that no protected act was sufficiently identified under section 27 Equality Act 2010.	Other	—	—
Whistleblowing	Strike-out refused, but the tribunal found little reasonable prospect of success and made a separate deposit order; it held that the pleaded material did not sufficiently identify a qualifying disclosure tending to show breach of legal obligation.

Legal tests applied

14 references

Official outcome judgment PDF

Gov.uk primary record

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