Mr R Biernat v Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust VIDEO PRIVATE PRELIMINARY HEARING Heard: Remotely (by video link) — 2020

The claimant was employed by the respondent as an Activities Facilitator from 19 November 2018 until dismissal on 28 February 2020 for gross misconduct. At this private preliminary hearing, he did not attend, and the tribunal proceeded in his absence after being satisfied that he had notice of the hearing. The claimant had not filed documents or witness evidence for the hearing.

On the ordinary unfair dismissal claim, the tribunal held that the claimant did not have two years' continuous employment for the purposes of section 108(1) Employment Rights Act 1996. It relied on a 2016 letter welcoming him to the nurse bank, which stated that he was not an employee, that the work was short-term, that no period with the NHS would count as continuous service, and that neither side was obliged to offer or accept work. The tribunal also relied on rota evidence showing variable hours and gaps between shifts of up to six weeks, and found no mutuality of obligation. It therefore held that it had no jurisdiction to hear the section 94/98 unfair dismissal claim and struck it out.

The claimant also brought a claim that he was dismissed because he had made protected disclosures under section 103A ERA 1996. The tribunal found his answers to case management questions were vague, did not identify the alleged victims or dates of the disclosures, and were unsupported by written evidence. It accepted the respondent's submission that the dismissal reason was misconduct relating to Facebook postings, and found no cogent basis for the claimant's case that his dismissal was because of protected disclosures. Applying the strike-out principles it identified, including the high threshold and the authorities it cited, the tribunal concluded that the whistleblowing claim had no reasonable prospect of success and struck it out.