Mr George Joseph Tyrell v NDT Services Limited — 2022

This was an open preliminary hearing on 13 June 2022 before Employment Judge P Britton sitting alone. It concerned the claimant's non-compliance with the Unless Order of 29 March 2022, which had required further particularisation of the whistleblowing detriment short of dismissal claim under section 47B of the Employment Rights Act 1996. The judge recorded that strict non-compliance meant the claim was automatically dismissed under Rule 38, but the hearing also considered whether that order should be revoked on reconsideration.

Applying the interests of justice approach drawn from Thind v Salvesen Logistics Limited and Governing Body St Albans School v Neary, the judge considered the reason for the default, its seriousness, possible prejudice, and whether a fair trial remained possible. He noted that the claimant was unrepresented, had believed the Scott Schedule could be supplemented by an accompanying statement, and had in fact served additional particulars by the deadline. He accepted the respondent's point that the Scott Schedule remained inadequate, but did not treat the failure as a deliberate refusal to comply.

The judge also recorded that, taking the claimant's case at its highest for this interlocutory purpose only, there was a case to answer on whether the March 2019 conversation with Mr Dangar amounted to a protected disclosure within section 43B ERA 1996. He further noted that any limitation or continuing act issue, including the respondent's argument that earlier events were out of time, would be matters for the full hearing, with Hendricks v Commissioner of Police for the Metropolis referenced on that point.

The judge concluded that it was in the interests of justice to revoke the Unless Order under Rule 38 and restore the struck out claim. The main hearing was re-listed for 19 September 2022 for five days, with witness statements to be exchanged by 5 August 2022. No merits findings or monetary award were made at this hearing.