Employment Judge TaftRepresented himself for claimantMr Green (instructed by Counsel) for respondentDate 7 February 2026
JUDGMENT
[1]The respondent’s application for strike out is dismissed.[2]The respondent’s application for a deposit order is dismissed.
REASONS
[1]The respondent made an application to strike out the claimant’s claims under Section 47B and 103A Employment Rights Act 1996 on the basis that they have no reasonable prospects of success because it is said there are no reasonable prospects of success of establishing that the claimant made qualifying disclosures. In the alternative, the respondent applies for a deposit order on the basis that there is little prospect of success in establishing that the claimant made qualifying disclosures.[2]At the time of making the application, the respondent further sought to establish that disclosures relied upon by the claimant in an email to the Tribunal on 14 February 2025 were not contained within his claim and so could not be relied upon without an amendment. During the course of the hearing, the claimant clarified that he was not seeking to expand upon the disclosures identified in his claim form and discussed at a Case Management Preliminary Hearing on 10 February 2025. I have not therefore made any findings regarding that part of the respondent’s application but confine my findings as to whether or not the claimant has no or little prospects of success of establishing that the following disclosures are qualifying disclosures:(a) In a letter dated 17 April 2023 sent to the Chair of Governors (first disclosure): (i) That school staff had posted or reposted images of children on their personal Twitter accounts; and (ii) That this was not investigated when reported by the claimant to Mr Mullings.(b) In an email sent to the Department for Education, NSPCC and local MPs on 23 September 2023 (second disclosure): (i) That school staff had posted or reposted images of children on their personal Twitter accounts; (ii) That this was not investigated when reported by the claimant to Mr Mullings; (iii) That Mr Mullings instead instructed staff members to delete evidence of misconduct; (iv) That a male staff member was spending time with a female student outside school; (v) That this was not fully investigated; (vi) That Mr Mullings threatened staff members with disciplinary action if they discussed the matter; (vii) That Mr Mullings told the student’s friends that they should not discuss the matter; and (viii) That the staff member went on to work at another school without an independent investigation. Law[3]Section 43B(1) Employment Rights Act 1996 (ERA) confirms that: In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[4]Section 43L(3) confirms that Any reference in this part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.[5]In Williams v Brown EAT 0044/19, the Employment Appeal Tribunal summarised the five elements that cumulatively must be satisfied in order for a claimant to establish that he or she has made a ‘qualifying disclosure’:(a) there was a disclosure of information by the worker in question(b) the worker believed that that disclosure was made in the public interest(c) any such belief was reasonably held(d) the worker also believed that the disclosure tended to show one or more of the matters listed in S.43B(1)(a) to (f); and(e) any such belief was reasonably held.[6]In Babula v Waltham Forest College [2007] EWCA Civ 174, the Court of Appeal confirmed that the question for an Employment Tribunal is whether the claimant reasonably believed that the information disclosed tended to show that (in this case) a criminal offence had been committed. The fact that the information the claimant believed to be true does not amount in law to a criminal offence does not by itself render the belief unreasonable and therefore the disclosure not protected. The fact he is wrong is not relevant provided that his belief is reasonable.[7]Rule 38(1) Employment Tribunal Procedure Rules 2024 confirms that The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; …[8]In Mbuisa v Cygnet Healthcare Ltd EAT 0119/18 the Employment Appeal Tribunal noted that strike out is a draconian step. In deciding whether or not to strike out, an Employment Tribunal should take the case at its highest.[9]In Cox v Adecco Group UK & Ireland and ors [2021] ICR 1307 the Employment Appeal Tribunal provided guidance on approaching strike out applications, noting that if the question of whether the claim has reasonable prospects of success turns on disputed facts, it is highly unlikely that strike out will be appropriate.[10]In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, the Court of Appeal stressed that it will only be in an exceptional case that a protected disclosure claim will be struck out as having no reasonable prospect of success when the central facts are in dispute.[11]Rule 40(1) Employment Tribunal Procedure Rules 2024 confirms that Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).[12]In Arthur v Hertfordshire Partnership University NHS Foundation Trust EAT 0121/19, the Employment Appeal Tribunal confirmed that when an Employment Tribunal is considering a deposit order, it is entitled to have regard to the likelihood of establishing the facts essential to a party’s case and reach a provisional view on credibility of the assertion being put forward.[13]That said, care must be taken when there is a factual dispute. In Sami v Avellan [2022] IRLR 656 the Employment Appeal Tribunal referred to an earlier decision in H v Ishmail [2017] IRLR 228, which had discussed the difference between deposit orders and strike out. In Ishmail Mrs Justice Simler observed that if "there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested". These words, Michael Ford QC, Deputy Judge of the High Court, said “underline the need for caution before making a deposit order where core facts are in dispute”. Submissions[14]The respondent accepts that I must take the claimant’s case at its highest but asserts that even if I do, there are either no, or in the alternative, little prospects of successfully establishing that(a) the claimant reasonably believed that there was a breach of a legal obligation; and/or(b) the claimant reasonably believed that his disclosure was in the public interest.[15]In its application, the respondent argued that the second disclosure was not received by the respondent and so could not have caused the detriments relied upon. At hearing, the respondent conceded that there was a factual dispute as to whether it was received, and that this factual dispute would need to be resolved at hearing.[16]The respondent argued that the first disclosure was an attempt to secure a financial settlement and so made for personal interest. It was said that the claimant can have had no reasonable belief that tweets posted prior to the publication of Keeping Children Safe in Education in 2015 were breaches of a legal obligation, and that the claimant cannot have had reasonable belief that his disclosure was in the public interest given that the tweets were posted 8-10 years ago.[17]The respondent highlighted that the claimant relied on internal policies, which it says were not legal obligations and that the claimant himself accepted in paragraph 8 of his claim form that he shared the information about the tweets to “highlight the difference in the way I was being treated”, i.e. a personal motivation. The respondent further asserted that the tweets in question were around 10 years old and that the claimant has not pointed to any specific policy or provision regarding sharing images of children or that there was a legal obligation to investigate that.[18]Further, the respondent argues that the claimant has no (or little) prospects of successfully arguing that he had a reasonable belief that repeating “gossip” about a male teacher and female student was in the public interest, because everyone knew about that gossip anyway, and because the claimant was not asserting that the teacher had met the student out of school – he was simply repeating earlier allegations. They further assert that the claimant has no (or little) prospects of successfully arguing that this highlighted a breach of a legal obligation.[19]The claimant disputed the age of the tweets and said that whilst the purpose of his looking through twitter accounts was to highlight differential treatment, once he had found the tweets, he thought that they were a safeguarding issue that should be investigated. He says that I cannot determine the issue of prospects of success without hearing evidence both in respect of his understanding of the legal obligations he relies upon and in respect of his belief that the disclosures were in the public interest, relying on Cox v Adecco.
Conclusions
[20]Since the 2013 reforms, a claimant’s motivation for making disclosures is irrelevant at the liability stage, though the Tribunal can reduce compensation by up to 25% if it appears that the disclosure(s) were not made in good faith. What is relevant is whether or not the claimant can establish that he reasonably believed that his disclosure(s) were in the public interest, irrespective of his motivation for making them. Evidence is needed to test that belief and whether it was reasonable.[21]The claimant cannot have a realistic prospect of establishing that he reasonably believed that tweets posted prior to the publication of Keeping Children Safe in Education breached any legal obligation contained within that document. But that is not the only basis of the claimant’s assertion that his disclosures were protected disclosures.[22]The respondent says that the claimant cannot have a realistic prospect of establishing that the policy documents he refers to were legal obligations. The claimant says that he believed policy documents contained legal obligations. That is possible: it is conceivable that a school’s policy documents would detail the school’s and teachers’ legal obligations.[23]It is still not clear what legal obligation the claimant refers to but he does say that he believed that the tweets and the failure to investigate them breached a legal obligation. He further says that the instruction to delete the tweets tended to show that this breach was being concealed. He further alleges that the failure to investigate the “gossip” about the male teacher, and the alleged instructions to staff and students not to discuss the matter, breached a legal obligation and tended to show that this breach was being concealed.[24]Babula confirms that the test for the Tribunal is to consider whether the claimant had a reasonable belief that the information he disclosed tended to show a breach of a legal obligation, even if it turns out that no such legal obligation existed. Evidence is needed to test that belief and whether it was reasonable.[25]It is clear from Section 43L that a claimant can establish a qualifying disclosure even where the respondent knew the information already – so the fact that the claimant was repeating “gossip” already known to the respondent does not necessarily mean that the second disclosure is not a qualifying disclosure. What is relevant is whether or not the claimant reasonably believed that the disclosure was in the public interest and that he reasonably believed that it tended to show a breach of a legal obligation, or that information tending to show that had been deliberately concealed. Again, evidence is needed to test that belief and whether it was reasonable.[26]The core facts of this case are in dispute: whether the respondent was aware of the second disclosure, whether the claimant reasonably believed that his disclosures were in the public interest and whether he reasonably believed that they tended to show breaches of legal obligations and/or that they were being deliberately concealed. It is not therefore possible to say that the case has no, or indeed little, prospect of success without hearing evidence from the claimant about those facts. That is evidence that must be heard at the final merits hearing, as explained by Mrs Justice Simler in Ishmail. For that reason, I dismiss both applications made by the respondent. Approved by:
Introduction
[1]This application is made by the claimant in respect of preparation time for the preliminary hearing that took place on 24 October 2025. My decision in respect of this application does not bind the Tribunal at final hearing. It is in respect of preparation time for the preliminary hearing only.[2]The respondent made an application to strike out the claimant’s claims under Section 47B and 103A Employment Rights Act 1996 on the basis that they were said to have no reasonable prospects of success because it was said there are no reasonable prospects of success of establishing that the claimant made qualifying disclosures. In the alternative, the respondent applied for a deposit order on the basis that there is little prospect of success in establishing that the claimant made qualifying disclosures.[3]At the time of making the application, the respondent further sought to establish that disclosures relied upon by the claimant in an email to the Tribunal on 14 February 2025 were not contained within his claim and so could not be relied upon without an amendment. During the course of the hearing, the claimant clarified that he was not seeking to expand upon the disclosures identified in his claim form and discussed at a Case Management Preliminary Hearing on 10 February 2025.[4]My decision was reserved, with judgment communicated to the parties on 9 December 2025. Prior to communication of that decision, on 21 November 2025, the claimant made an application for a preparation time order on the basis that he says the respondent’s applications had no reasonable prospect of success, because the respondent had not complied with an order for disclosure and to produce a hearing file and because he says the respondent and its lawyers have behaved vexatiously. The respondent provided its response on 28 November 2025. No further correspondence has been uploaded to the Tribunal file since promulgation of my judgment on 9 December 2025. Law[5]Rule 74 of the Employment Tribunal Rules 2024 deals with costs and preparation time orders(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.
Conclusions
[6]Whilst the application was arguably premature, I consider that it is appropriate to decide the application as if it were made after my judgment. In doing so, I have taken account of the fact that if I were to refuse the application on the basis that it were premature, the claimant is likely to make a further application relying on my judgment. No reasonable prospect of success[7]The claimant makes the application on the basis that he says that the respondent’s applications had no reasonable prospect of success. However, Rule 74(2)(b) confirms that the Tribunal must consider a preparation time order only where a claim, response or reply has no reasonable prospect of success: it does not refer to applications.[8]That said, I am satisfied that, in principle, it is arguable that a party acts unreasonably if they make an application that has no reasonable prospect of success.[9]I am not however satisfied that the respondent did act unreasonably. At the time of making its application, the respondent reasonably understood that the claimant intended to expand his case, and much of its application referred to that expanded case. It was only at the hearing that the claimant clarified that he did not so intend, and that he intended to rely only on those disclosures previously identified by Judge Bartlett.[10]The fact that I refused both applications does not mean that it was unreasonable for the respondent to make the applications. Breach of Tribunal orders[11]Both parties were in breach of Judge Bartlett’s order to send copy documents to each other. The respondent sent a list but did not comply with the order because they did not send copy documents. The claimant sent only documents that he believed the respondent did not already have. Again, this did not comply with the order. Arguably the respondent is more culpable given that it is professionally represented and should therefore have been capable of understanding what the order required. However, that does not mean that the respondent was behaving vexatiously or otherwise unreasonably in seeking to deal with disclosure by provision of a list rather than copy documents, and by delaying production of the hearing file until it was satisfied that the claimant had fully complied with his duty of disclosure. Rule 74(2) is not therefore made out. Further, I do not consider it is appropriate to make an order under Rule 74(3). Vexatious or otherwise unreasonable conduct[12]The claimant complains that the respondent refused freedom of information and subject access requests and made an allegedly malicious referral to the Teachers Regulatory Agency. Whether or not this is true, this cannot form the basis of a preparation time order: it is only if a party acts unreasonably in “the way the [Employment Tribunal] proceedings, or part of it, have been conducted” that Rule 74 is engaged.[13]I was not referred to most of the documents contained within what was a very large bundle for a 3-hour hearing. Including documents in a bundle that are not likely to be of assistance to a Judge hearing a matter is not helpful and is to be discouraged. It is not however, by itself, evidence of vexatious or unreasonable behaviour.[14]It is not appropriate at an interim stage to consider whether a failure to negotiate or indeed the content of the response to the claim amount to vexatious or otherwise unreasonable behaviour. To do so would be to inappropriately bind the judge hearing the final merits hearing.[15]I therefore dismiss the application but do not consider that the claimant was acting disruptively, vexatiously or otherwise unreasonably merely by making this application, nor was the application misconceived. Approved by: