Mr Robert Elliott v Slough Children’s Services Trust — 2021

This was a remote paper preliminary hearing on 11 May 2021 before Employment Judge Gumbiti-Zimuto. The respondent's strike-out application succeeded for the protected disclosure, constructive dismissal, flexible working and wrongful dismissal complaints listed in paragraph 1 of the reasons. The claimant's sex discrimination, holiday pay and unlawful deduction complaints were not decided at this hearing and were left for the final hearing.

On the protected disclosure allegations, the tribunal held that the November 2017 comment attributed to Ms Askew was not a qualifying disclosure under s.43B ERA 1996 and was not made in the public interest. Applying the Chesterton Global Ltd v Nurmohamed factors, the judge found there was no basis for the s.47B detriment claim or the s.103A automatically unfair constructive dismissal claim.

On constructive dismissal generally, the tribunal referred to s.95(1) ERA 1996 and Western Excavating (ECC) Ltd v Sharp. It found that the claimant had not shown conduct capable of destroying trust and confidence except for the 28 August 2018 telephone call, but that he affirmed the contract by continuing in employment until 30 September 2018 and resigned after the refusal of flexible working. The automatically unfair constructive dismissal claim based on time off for dependants under s.99 ERA 1996 was also dismissed.

The flexible working complaints under s.80H ERA 1996, s.47E ERA 1996 and s.104C ERA 1996 were dismissed. The tribunal held the respondent met the claimant promptly, discussed the request, gave a verbal refusal and later written reasons, and relied on lawful grounds under s.80G ERA 1996. The separate s.47C time-off-for-dependants detriment complaint was allowed to proceed only on allegation (a), because the factual disputes about the 28 August 2018 conversation could not be resolved on this paper hearing.