Miss L Hurley v Gateway Highland Homeless Trust — 2020

At the preliminary hearing on 28 February 2020, Miss L Hurley pursued whistleblowing detriment, whistleblowing dismissal, and an 'other payments' claim that was clarified as an unlawful deduction from wages claim. The tribunal struck out the wages claim under Rule 37 because the last possible deduction was 29 November 2018, Early Conciliation did not begin until 31 May 2019, and the claim was therefore outside the time limit in s.23 ERA 1996; the claimant's explanation that she was unaware of the requirements was not enough, and the pleading was not sufficiently particularised.

The respondent applied to strike out the whistleblowing claims. It argued that contemporaneous documents showed there was on-call cover and that the claimant knew this, but the tribunal said the high strike-out threshold was not met. Applying the approach discussed in Mechkarov, HM Prison Service v Dolby, Hassan, Anyanwu, Ezsias, Tayside, Ukegheson and Ahir, it held that the documents did not conclusively disprove the claimant's case and that there were core disputed facts about what the claimant believed, what she disclosed, whether the disclosures were protected, and whether causation could be proved.

The claimant said her disclosures concerned an adult subject to a guardianship order, including concerns about changed care arrangements, invoicing to NHS Highland, the absence of on-call cover at times, and the safety of family-contact weekends. The tribunal noted the respondent's reliance on an email from Harriet Tay and other material, but held that those matters required evidence and cross-examination rather than summary disposal. It therefore refused both the strike-out application and the deposit-order application under Rule 39, and the whistleblowing detriment and dismissal claims were allowed to proceed to case management.