Mrs J Shaw v Represented by: Mr I Wells Solicitor Lothian Health Board — 2021

At a remote preliminary hearing on 20 May 2021, Employment Judge A Kemp considered the respondent's applications to strike out the claimant's protected disclosure claims. The respondent accepted that the claimant had given fair notice of the claims, but argued that there was no properly pled basis for concluding that the alleged detriments were caused by the disclosures. The claimant said she had not been represented earlier and wished to rely on a new witness statement and additional documents.

The tribunal set out the overriding objective and the Rule 37 strike-out power, then reviewed the authorities it treated as relevant, including HM Prison Service v Dolby, Hassan v Tesco Stores Ltd, Anyanwu, Ezsias, Tayside Public Transport Co Ltd v Reilly, Ukegheson, Ahir and Mechkarov. It noted that strike out is a high threshold and that discrimination and public interest disclosure claims are generally fact-sensitive and should usually be decided after evidence, not by premature disposal unless the clearest case is shown.

Applying that approach, the tribunal found that the claimant's causation case was not clearly pleaded, but it might still be developed from facts and circumstances, particularly if she were allowed to rely on an amended witness statement. Because the disputed causation issue had not yet been determined and the tribunal was not persuaded that the strike-out threshold was met, the respondent's applications were refused. The judgment did not decide the substantive merits of the protected disclosure or dismissal allegations.