Mr D Robertson v Paisley Secretarial Services Ltd — 2025

At this open preliminary hearing, Employment Judge Campbell considered whether Mr D Robertson had made protected disclosures under section 43B of the Employment Rights Act 1996 and whether he had done a protected act under section 45A(1) in relation to the Working Time Regulations. The tribunal held that the first respondent was his employer for these claims and that the second respondent was not, although the second respondent had been involved in the assignment.

The tribunal rejected all three alleged protected disclosures. On the first day of the assignment, the claimant had registered that he did not wish to opt out of the 48-hour limit and later said he could not do 12-hour shifts. The tribunal held that his comments to Ms Rae were not qualifying disclosures because his belief that requiring flexibility for 12-hour shifts would breach Regulation 4 was not reasonably held: 12-hour shifts can still be compatible with the average weekly limit over the 17-week reference period.

The second alleged disclosure to Dominic Zawan also failed. The tribunal found it was based on the same unreasonable premise, that it concerned hypothetical consequences rather than disclosure of factual information, and that Mr Zawan was not a qualifying recipient under the Act. The tribunal also found that, even if something said to him could otherwise have amounted to a qualifying disclosure, there was no basis for protection under section 43C or section 43G on the facts found.

The third alleged disclosure, said to be contained in the emails to Ms Rae and Mr Nock later that day, was also rejected. The tribunal found that Ms Rae had not told the claimant he would receive enhanced pay after 48 hours, and that the email exchange did not disclose information tending to show a legal breach. The complaint under section 47B was therefore dismissed. The section 45A(1) complaint concerning termination of the assignment was not finally determined at this stage and was left to a full hearing, with the tribunal noting that further evidence would be needed on why the assignment ended.