Mr S Spear v ,15 Solicitor Fonab Castle Hotel Ltd — 2021

This was an open preliminary hearing on 16 July 2021 before Employment Judge McFatridge. The claimant had presented claims said to arise from a protected disclosure, including detriment under section 47B and automatically unfair constructive dismissal under section 103A of the Employment Rights Act 1996. The respondent had missed the original ET3 deadline and applied for a further extension of time so that its response could be accepted.

The tribunal accepted the explanation given by the respondent's case handler, Ms Marten, that the delay was caused by human error in misunderstanding the deadline that had been granted. Applying the approach in Kwik Save Stores Ltd v Swain, the judge found that the balance of prejudice favoured allowing the respondent to defend the case. The tribunal considered that the respondent had a stateable defence, including disputes about whether the claimant had made a qualifying disclosure, whether detriment occurred, and the reason for any treatment complained of, whereas the prejudice to the claimant if the ET3 were accepted was limited.

The respondent's application for an extension of time to lodge the ET3 was therefore granted and the ET3 lodged on 9 June was accepted. The tribunal then case-managed the matter further, deciding that the issue of whether the claimant had made a protected disclosure should be determined at a later preliminary hearing. It also noted that, on the ET1 as read by the judge, no freestanding section 100 claim was currently before the tribunal, and it gave directions for clarification of the pleaded case and for preparation of an agreed list of issues.