Mr G HadfieldClaimantFalconex LtdRespondentDate 7 June 2022
JUDGMENT
[1]The respondent’s application for strike out of the claims is refused.[2]The issue of whether the claimant was furloughed for 2 or 3 weeks in May 2020 will be determined at the final hearing. This issue will be relevant to whether the claimant had a reasonable belief in any protected disclosure and therefore evidence must be heard from both parties. This issue will have no bearing on the claim brought under the Trade Union and Labour Relations (Consolidation) Act 1992.
REASONS
[1]By a claim form presented on 11 September 2020 (having entered early conciliation and having received a certificate against the respondent dated 11 August 2020), the claimant complained of automatic unfair dismissal in relation to his dismissal on 29 May 2020.[2]By a response form dated 21 October 2020 the respondent resisted the complaint. It says that the claimant was fairly dismissed for redundancy. Preliminary Issues[3]At the beginning of the hearing, before I heard any evidence, I had to deal with some preliminary issues. Supplementary Witness Statement and document for Inclusion in the Hearing Bundle[4]The respondent had submitted a supplementary witness statement to the Employment Tribunal on 7 March 2022 for Mr Pascal Roux, Managing Director.[5]On 7 March 2022, solicitors for the claimant had written to the Tribunal informing it that paragraphs 15-17 of Mr Roux’s supplementary witness statement related to settlement and a strike out application which had already been refused by Employment Judge Ainscough on 19 November 2021. The claimant's solicitors proposed that the Employment Judge conducting the final hearing should not read Mr Roux’s supplementary statement until they had heard oral representations from both parties on whether it was to be added to the Hearing Bundle or not.[6]In their email of 7 March 2022, the claimant's solicitors also referred the Tribunal to their previous email of 17 September 2021, regarding a document that the respondent wanted to add to the Hearing Bundle. The claimant were objecting to its inclusion as it related to settlement. Again, they asked the Employment Judge who was to hear the final hearing to await oral representations from the parties at the hearing before reading this document.[7]At the outset of the hearing, I confirmed to the parties that I had seen the email of 7 March 2022 sent by the claimant’s solicitor. I confirmed that I had not read Mr Roux’s supplementary witness statement or any documents within the Hearing Bundle which were marked “without prejudice” prior to hearing any oral submissions the parties wished to make. I then heard submissions from both parties as to how best to proceed.[8]Mr Henry, Counsel for the Claimant, informed me that the claimant did not wish to make an application concerning the supplementary witness statement. The claimant did not object to it being entered into evidence other than with respect to paragraph 15 which referred to without prejudice settlement discussions. This paragraph was under the heading “Resolving the Claim”[9]Mr Henry said that he was, “making an observation” rather than any application and accepted that existence of settlement discussions was now known to me, but I would be aware that I should have no regard to this fact and that such without prejudice communications would, if appropriate, be relevant to remedy only, in relation to costs. It was proposed that I read Mr Roux’s witness statement up to and including paragraph 14 and not to read below the heading “Resolving the Claim”.[10]Mr Roux, representing the respondent, alleged that paragraph 15 in his supplemental witness statement and the document he wanted to include in the Hearing bundle were open offers of settlement. I asked Mr Roux to provide me with the Hearing Bundle reference for the document the respondent wanted to include in the Hearing Bundle, but the claimant had objected to. Mr Roux told me this document had not been included in the Hearing Bundle sent to the Tribunal by the claimant’s solicitor. Mr Henry did not dispute this.[11]I discussed the “without prejudice” doctrine to Mr Roux and how this was a joint protection, and the claimant was clearly not waiving his rights to this protection. I also explained to Mr Roux that whilst many parties entered into some form of settlement negotiations prior to a final tribunal hearing, the fact and the details of those settlement negotiations were irrelevant to determining liability and may only become relevant if the claimant was successful in his claim and the case moved to the remedy stage.[12]It was agreed with the parties that the best way to proceed would be for me to read Mr Roux’s supplementary witness statement up to and including paragraph 14 and not to read below the header “Resolving the Claim” and the respondent would not make any reference to settlement negotiations during the liability part of the hearing (including during Mr Roux’s evidence and the respondent’s submissions).[13]I asked the parties if they had a copy of Mr Roux’s supplementary witness statement with the relevant paragraphs removed. The parties did not have a redacted copy and so it was agreed that I would use the full copy of Mr Roux’s supplementary statement sent previously to the Tribunal, reading up to the end of paragraph 14 only. No objection was made to me continuing to adjudicate on the matter or any application made for me to recuse myself. I also did not consider, in all the circumstances (including the agreed approach), that I should recuse myself.[14]The respondent was concerned that the Hearing Bundle included irrelevant documents relating to the previously withdrawn claim for unauthorised deductions and it should be updated. I explained that I would only be considering documents in the Hearing Bundle which were relevant to the issues I was being asked to determine. The respondent confirmed that he did not wish to make an application for the Hearing Bundle to be updated or make any other application.[15]Following my time in chambers, reading the witness statements and relevant documents before evidence commenced, I confirmed to the parties that the last paragraph I had read in Mr Roux’s supplementary statement was paragraph 14 and I had not read any of the paragraphs under the heading “Resolving the Claim”. I confirmed that any settlement negotiations were totally irrelevant to the matters I needed to determine in terms of liability, and I had put the existence of such negotiations to the back of my mind. Although Mr Roux had said that the document the respondent wanted adding to Hearing Bundle (but to which the claimant had objected) had not been added, I still had not read any document marked “without prejudice” in the Hearing Bundle. Claims and Issues[16]The issues to be determined by the Tribunal were discussed and agreed at the outset of the hearing. A list of Issues had previously been agreed at a preliminary hearing on 28 January 2021 with Employment Judge Porter (42-50). Mr Henry confirmed that the complaints of unlawful deduction from wages/breach of contract and breach of contract- pension contributions, had subsequently been withdrawn and were no longer issues for the Tribunal to determine. These claims were dismissed upon withdrawal by Employment Judge McDonald on 16 June 2021.[17]It was agreed that the only claim to be determined was that of automatic unfair dismissal, and the relevant issues were those set out under the heading “Unfair Dismissal” of