ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 8000274/2023 Issued Following Open Preliminary Hearing Held at Edinburgh on the th of September 2023 Employment Judge J G d’Inverno Ms Pauline Joyce v Forth Valley Health Board — 2023

The claimant brought a complaint under section 47B of the Employment Rights Act 1996 alleging that she had suffered detriment on the ground that she had made a protected disclosure. She also sought to pursue a freestanding complaint alleging breach of Article 9 and Article 10 human rights, described by her as freedom of expression or the right to share information. The open preliminary hearing determined the respondent's strike-out application; no oral evidence was led, and the respondent's application proceeded on the basis that the claimant's averments were taken pro veritate.

For the section 47B complaint, the alleged detriments were two emails sent to the claimant by legal representatives acting for the respondent in June 2023. The first, from Mr Rhidian Davies, concerned copies of previous hearing bundles and disputed their relevance to the current claim. The second, from Ms Hazel Craik, responded to the claimant's question about sharing bundles with the media and referred to possible UK GDPR, Data Protection Act 2018, and confidentiality considerations. The tribunal proceeded on the assumption, for the purpose of the application, that the claimant had made a relevant qualifying and protected disclosure, but held that the claim had no reasonable prospect of success because the pleaded detriments could not found the claim.

The tribunal accepted the respondent's three separate grounds. It held that the correspondence was sent in the course of judicial proceedings by legal representatives and attracted absolute privilege and immunity. It also held that the emails were sent and received in the claimant's capacity as a litigant, not as an employee, and that the scope of section 47B did not extend to the claimant in relation to those communications. Finally, construing the words objectively, the tribunal concluded that a reasonable employee would not regard the emails as detrimental in the circumstances, and that the claimant's contrary view amounted to an unjustified sense of grievance within the meaning discussed in Shamoon.

The tribunal found that the deficiency in the pleaded section 47B claim could not be cured by further specification because the only two detriments relied on were, on undisputed facts and in law, not detriments. It held that allowing the claim to proceed would be disproportionate and contrary to the Overriding Objective, and struck out the protected disclosure detriment complaint under Rule 37(1)(a) on the basis that it had no reasonable prospect of success.

The tribunal separately dismissed the freestanding human rights complaint for want of jurisdiction. It recognised that human rights legislation may apply to the Employment Tribunal in the conduct of proceedings before it, but held that jurisdiction to consider and determine a freestanding complaint of breach of human rights was not within the jurisdictions conferred on the Employment Tribunal by Parliament. No remedy award was made or considered in the judgment.