Claimant v Mr J M Hobbs and others — 2022

At the preliminary hearing on 1 and 2 December 2022, the tribunal held that Mr E Stack had sufficient qualifying service to bring an unfair dismissal claim under section 94 ERA 1996. It found that he was an employee of Superrational Ltd from at least January 2016 until his dismissal, that the nature of his work did not change after the November 2019 service agreement, and that the use of invoices and the absence of PAYE until late 2019 did not alter his employment status.

The tribunal also held that Mr Stack had made four protected disclosures within section 43B ERA 1996. It accepted that his communications in October and November 2021, together with later written and oral statements in November 2021 and January 2022, disclosed information about the company trading while insolvent or at risk of insolvency, possible wrongful trading, and breach of directors' fiduciary duties. Applying the approach summarised in Williams v Michelle Brown AM and Kraus v Penna plc and anor, the tribunal held that he reasonably believed the disclosures were made in the public interest and tended to show failure or likely failure to comply with legal obligations.

The tribunal rejected the respondents' case that the matters raised were only personal concerns or allegations and accepted Mr Stack's explanation that he was raising them for the proper and legal functioning of the company rather than for personal gain. It also granted the application to conjoin Mr Will Howell as a respondent for the protected-disclosure aspect of the proceedings, noting that individuals can be liable under section 43B(1B) ERA 1996 and that, given the liquidation position and Mr Howell's involvement, joinder was proportionate. No remedy was determined at this stage; the case was listed for a four-day final hearing.