EMPLOYMENT TRIBUNALS (SCOTLAND) Case no: 8000039/2022 Held at Glasgow on February 2023 Employment Judge W A Meiklejohn Tribunal Member Ms J Ward Tribunal Member Mr G McKay Mr Darren Morgan v Orridge & Company Ltd — 2023

The final hearing was listed for 20 to 22 February 2023, and the tribunal heard the respondent's strike-out application at the start of that hearing. It recorded that a preliminary hearing on 16 November 2022 had already directed the claimant to explain the basis on which he said he was an employee, identify the information said to amount to a protected disclosure under section 43B(1)(d) of the Employment Rights Act 1996, particularise his monetary claims, provide a schedule of loss, and lodge a witness statement. The respondent said it had repeatedly provided the claimant with his payslips and job logs, but the claimant had not given the required particulars.

The tribunal found the claimant's explanations for non-compliance unconvincing and held that he had behaved unreasonably in the conduct of the proceedings, so Rule 37(1)(b) and (c) were engaged. It also held, applying the authorities it cited, that a fair trial was not possible within the listed 20 to 22 February 2023 window because the respondent did not know the detail of the protected disclosure allegation or the monetary claims. However, it decided that strike out would be disproportionate and refused the application.

Instead, the tribunal made an unless order. The respondent was ordered to provide the claimant, by 23 March 2023, with the work schedules for work assigned to and undertaken by him between 24 March 2019 and 30 March 2022, or, if those schedules had not been retained, details of hotel bookings made for him in connection with that work. The claimant was ordered, by 6 April 2023, to provide the basis of his employee-status case, the information said to amount to the protected disclosure, details of the amounts and calculations for his expenses, wages and holiday pay claims, a schedule of loss, and a witness statement. The tribunal stated that non-compliance would result in dismissal without further order of the unfair dismissal, automatically unfair dismissal, detriment, failure to pay expenses, failure to pay wages and failure to pay holiday pay complaints.