ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4110023/2019 Held at Edinburgh on January 2020 Employment Judge: W A Meiklejohn Mr Jacob Cohen v Faculty Services Limited — 2020

At the open preliminary hearing on 6 January 2020, the tribunal dealt with jurisdiction over the claimant's breach of contract claim, limitation and strike-out issues on the claimant's direct sex discrimination claim, and the claimant's application to strike out parts of the respondent's response to the unfair dismissal claim. The claimant appeared in person and the respondent was represented by Mr D Hay, Advocate.

On the breach of contract claim, the tribunal held that when the respondent invoked its disciplinary policy it was under a contractual obligation to comply with that policy, including the confidentiality provision. However, Article 5(d) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 excluded jurisdiction so far as the claim concerned an alleged breach of an obligation of confidence. The tribunal said that this did not necessarily dispose of the whole breach of contract claim and observed that the claimant might seek to amend it as a more ordinary claim that dismissal for gross misconduct itself amounted to breach of contract.

On the sex discrimination claim, the tribunal held that the claimant's suspension on 20 February 2019, followed by investigation, disciplinary hearings and dismissal, was conduct extending over a period for the purposes of section 123 Equality Act 2010, so the claim was not out of time. The tribunal then struck the claim out under Rule 37(1)(a), holding that there was no 'something more' beyond the difference in treatment between the claimant and Ms J Boyd and no factual basis from which sex could be found to be the reason for the treatment complained of.

The tribunal refused the claimant's application to strike out parts of the respondent's response to the unfair dismissal claim. It held that although the response was brief, it set out a statable answer and could not be said to have no reasonable prospect of success. No liability finding or monetary award was made at this stage, and the case was listed for a further case management hearing on 31 March 2020.