Mr R Owen For the v Mr D Mistry — 2020

This was a public preliminary hearing on 17 February 2020 before Employment Judge S Shore at North Shields. The respondent applied on 28 January 2020 for a strike out or deposit order on the basis that the claimant’s claims had little or no reasonable prospect of success. The hearing was first dealt with privately and then converted to a public preliminary hearing to determine that application.

The respondent’s position was that the material disclosed did not show merit in the claims. It accepted that it was at least arguable that the claimant had made a protected disclosure, but said there was no evidence that the reason for dismissal, or for the instigation of disciplinary proceedings, was the protected disclosure. The claimant submitted that there were significant factual disputes and that the real reason for dismissal was unclear, with the timings showing that disciplinary proceedings and dismissal followed quickly after the alleged disclosure.

The tribunal accepted that many facts were disputed and that the respondent acknowledged the possibility of a protected disclosure. It held that, given the dispute on the facts, the claimant’s prospects of success on all claims were better than no reasonable prospect and little reasonable prospect, and that he had an arguable case on the papers disclosed at that stage. The only claim expressly disposed of in the judgment was the failure to pay holiday pay claim, which was dismissed upon withdrawal.