(1) Mr D Hazel (2) Mr C O’Driscoll v Lift Gear engineering limited PRELIMINARY HEARING (OPEN) — 2022

This was a preliminary hearing on the respondent's applications to strike out, or alternatively to obtain deposit orders, in relation to the two claimants' whistleblowing-based automatic unfair dismissal claims. The tribunal applied rule 37(1)(a) and rule 39 of the Employment Tribunals Rules 2013, noting the caution required in whistleblowing cases and referring to Ahir v British Airways Plc, Van Rensburg, Wright v Nipponkoa Insurance (Europe) Ltd and Sharma v New College Nottingham.

For Mr Hazel, the tribunal accepted that, taking his case at its highest, the pleaded discussion on 28 June 2021 about supervision, public liability insurance, health and safety, and working hours could amount to a protected disclosure under section 43B ERA 1996. It also noted contemporaneous text messages after his dismissal that referred to legalities, public liability and health and safety, which could provide some corroboration. The tribunal therefore held that his claim was not struck out and that it was not appropriate to make a deposit order, because the claim had more than little reasonable prospect of success.

For Mr O'Driscoll, the tribunal considered the alleged back injury on 23 June 2021, the subsequent text messages, and the pleaded case that he had made a protected disclosure to Mr Hazel on 24 June 2021 about unsafe working practices. It was concerned that the contemporaneous texts did not mention an accident at work, and that his detailed email of 13 July 2021 after dismissal did not refer to whistleblowing or to being dismissed because of a disclosure. On that basis the tribunal held that his claim was not struck out but had only little reasonable prospect of success, and it ordered a deposit of £500 within 56 days. The tribunal also recorded that it had considered his means when setting the amount.