E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000051/2023 Held at Aberdeen on July 2023 Employment Judge J M Hendry Ms M Pirie v Orka Artisan Café Ltd st and 1 other — 2023

The claimant's ET1 alleged unfair dismissal, discrimination on the grounds of disability and sex, and whistleblowing. This judgment concerned the second respondent only. The tribunal recorded that the first respondent employed the claimant, while the second respondent was a consultancy engaged to carry out the termination of her employment.

The tribunal held that there was no prima facie case of sex or disability discrimination against the second respondent. It found that the claimant was not employed by the second respondent and that the only potentially relevant route against that respondent would have been a detriment claim under section 47B of the Employment Rights Act 1996. The tribunal also found that the claimant had not shown that the second respondent knew, or should have known, of any qualifying protected disclosure before dismissal.

The judge considered the agency point relied on by the claimant and referred to Ministry of Defence v Kemeh. On the facts found, the second respondent was acting for the employer when instructed to terminate the claimant's employment, but was not an agent with the kind of autonomous decision-making power that would make the whistleblowing claim viable. Applying Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013, and the strike-out authorities cited, the tribunal concluded that any whistleblowing claim and any automatic unfair dismissal claim against the second respondent had no reasonable prospect of success and should be struck out.

The tribunal noted repeated contact between the claimant and the second respondent after dismissal and earlier warnings about unreasonable email correspondence, but it did not need to determine the alternative strike-out ground under Rule 37(1)(b). No remedy was awarded because the claims against the second respondent were struck out.