Mr G Mckinlay v Darren Hush, Royal Mail Edinburgh West — 2022

Mr Mckinlay, a former Royal Mail employee, brought claims of unfair dismissal and disability discrimination arising from his dismissal. The tribunal said the claims were directed against Darren Hush, a fellow employee, rather than the employer, and that the ET1 was presented in 2021 about a dismissal in 2018, well outside the ordinary three-month time limit. It also recorded that the respondent relied on a prior COT3 settlement said to settle claims against Royal Mail and its employees, and on earlier tribunal proceedings that had been withdrawn and dismissed.

The claimant said he was continuing the case because of how he had been treated, that he had been targeted and that this affected his health. He accepted signing the COT3 in 2019 but said he did not know what he was signing because of the stress he was under. The respondent replied that no statutory basis or out-of-time explanation had been given, and noted that EJ d'Inverno had already found in a 14 April 2021 judgment that the claimant had capacity when signing the agreement.

Applying Rule 37, the tribunal referred to the two-stage strike-out approach in HM Prison Service v Dolby and Hasan v Tesco Stores Ltd, the caution required before striking out discrimination claims in Anyanwu, the need to take the claimant's case at its highest in Mechkarov v Citibank NA, and the caution for litigants in person in Mbuisa v Cygnet Healthcare Ltd. It held that the claim had no reasonable prospects of success because unfair dismissal does not lie against a fellow employee, the COT3 validly gave up claims against Royal Mail and its employees so that the tribunal's power was ousted under s203 ERA and s144 Equality Act, the capacity point could not be re-litigated, the claims were out of time, and res judicata applied to the earlier withdrawn and dismissed proceedings. The tribunal therefore struck out the claim under Rule 37(1)(a).