E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111342/20215 Held at Aberdeen on September 2022 (V) Employment Judge N M Hosie Mr P Jurgiel v Robertson Facilities Management Ltd — 2022

This was a preliminary hearing on the respondent’s application to strike out, or alternatively for a deposit order, in a claim which had been developed as one under s.47B Employment Rights Act 1996 for detriments said to have been suffered for making protected disclosures. The hearing was by CVP, no evidence was heard, and the tribunal took the claimant’s factual averments at their highest. The tribunal noted the lengthy procedural history: the ET1 was lodged on 9 September 2021, several case management orders followed, and the claimant was repeatedly directed to identify each alleged disclosure, the person to whom it was made, the date, the manner of communication, the detriment relied on, and the facts said to show causation.

The tribunal found that, despite those opportunities and the claimant’s further and better particulars of 14 July 2022, he still had not demonstrated any qualifying disclosure meeting s.43B ERA 1996. It referred to the 5-stage test in Martin and to Blackbay Adventures Ltd t/a Chemistree v Gahir on the need to identify each disclosure separately by date and content. On that basis, the tribunal concluded that the claim did not satisfy the statutory whistleblowing test and had no reasonable prospect of success.

The tribunal also accepted the respondent’s submission that the alleged detriments were, in substance, complaints about the way the respondent handled the claimant’s grievances and his dissatisfaction with the grievance outcome and minutes. It referred to Shamoon and Warburton on detriment, and held that an employer has considerable discretion in grievance handling. The tribunal noted that the claimant’s reference to dismissal in his final particulars did not amount to a properly pleaded dismissal claim under s.103A, and in any event lacked the necessary specification and causation.

The claim was therefore struck out under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013. The tribunal declined to give the claimant another opportunity to particularise the case, noting the repeated earlier directions, the passage of more than a year since the ET1, and the need to comply with the overriding objective. No remedy was awarded because the claim was not allowed to proceed.