Mr B Kennedy v Lookers plc — 2021

This was a preliminary hearing in claims by Mr B Kennedy against Lookers Plc for ordinary unfair dismissal under s.98 ERA, automatic unfair dismissal under s.103A ERA, and protected disclosure detriment under ss.47B and 48 ERA. The tribunal did not hear evidence or make findings of fact on the merits. The time-bar issue for the detriment claim was left to any final hearing because the claimant said there was a series of detriments and the evidence would overlap with the substantive issues.

The respondent applied to strike out the protected disclosure claims under Rule 37(1)(c), relying on alleged non-compliance with a January 2021 order for further and better particulars. The tribunal refused strike-out. It held that the ET1 set out the claimant's case in clear and succinct terms, that there was no basis to say the respondent lacked fair notice of the protected disclosures, detriments, or alleged unfair dismissal, and that the claimant had made efforts to comply with an order which the tribunal considered broad and difficult to understand.

The tribunal accepted that the claimant's further particulars did not give fair notice of any additional protected disclosures set out in those particulars, but did not find a failure to comply with the January order. It set aside that order and the claimant's responses to it, and issued a revised order requiring the claimant to confirm whether he relied on protected disclosures beyond those already pleaded in the ET1 and, if so, to provide specified information about each alleged disclosure.

The claimant applied to add Mr Muir as a second respondent. The tribunal refused the application. It held that adding him to the unfair dismissal claims was not competent because s.111 ERA claims could be brought against the employer, and the claimant's contract of employment was with Lookers Plc. For the protected disclosure detriment claim, the tribunal held that adding another worker could be competent under s.47B(1A)(a), but refused the amendment under Rule 34 after applying Selkent factors, noting in particular the limited prejudice to the claimant if refused and the delay that would follow if the amendment were allowed. No remedy was awarded in this preliminary judgment.