Miss Morag Jardine v The Scottish Ministers (Rural Payments and Inspections Directorate): 4100324/2019
| Judgment Date | 11 December 2019 |
| Subject Matter | Public Interest Disclosure |
| Date | 11 December 2019 |
| Citation | 4100324/2019 |
| Published date | 15 July 2020 |
| Court | Employment Tribunal |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4100324/2019
5 Held in Glasgow on 24 June 2019 (Preliminary Hearing)
Employment Judge I McPherson
Miss Morag Jardine Claimant 10 In Person
The Scottish Ministers (Rural Payments and Respondents
Inspections Directorate) Represented by:
Dr Andrew Gibson - 15 Solicitor
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The judgment of the Employment Tribunal is that: 20
(1) In light of the claimant’s email to the Tribunal, sent at 16:00 on 10 June 2019,
withdrawing that part of her claim making whistleblowing complaints against
the respondents (under Sections 103A and 47B of the Employment Rights
Act 1996, being alleged automatically unfair dismissal by the respondents for
her having made a protected disclosure, and for her having allegedly been 25
subjected to a detriment by the respondents on the ground that she had made
a protected disclosure), and her oral submissions and amended section 8.2
of the ET1 claim form as intimated at this Preliminary Hearing, withdrawing
those whistleblowing complaints, and any complaint of a health and safety
case against the respondents under Section 44 of the Employment Rights 30
Act 1996, where she was allegedly subjected to a detriment by the
respondents, those parts of her claim, having been withdrawn by her, in terms
of Rule 51 of the Employment Tribunals Rules of Procedure 2013, are
dismissed by the Tribunal under Rule 52, leaving only before the Tribunal her
claim against the respondents, insofar as based on her complaint of her being 35
4100324/2019 Page 2
unfairly dismissed and suffering discrimination by perception, as set forth in
her revised paper apart submitted to the Tribunal on 21 June 2019, contrary
to the Equality Act 2010.
(2) The claimant having failed to establish that she was exempt from notifying
ACAS about early conciliation before presentation of her claim to the Tribunal,
5
as required by Section 18A of the Employment Tribunals Act 1996, and
the Employment Tribunals (Early Conciliation: Exemptions and Rules of
Procedure) Regulations 2014, the Tribunal, having considered parties’
written and oral submissions made at this Preliminary Hearing, and after
private deliberation thereafter in chambers, holds that the claimant has failed
10
to establish that the exemption in Section 18A(7) applies on the facts of her
case, and, accordingly, the Tribunal has no jurisdiction to consider this claim,
and accordingly it is dismissed by the Tribunal.
(3) Further, and in any event, the Tribunal, having also considered parties’ other
written and oral submissions made at this Preliminary Hearing, and after
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private deliberation thereafter in chambers, holds that the claim, even if it had
not been so dismissed for failure to give provide early conciliation notification
to ACAS prior to presentation of the ET1 claim form, would have been
dismissed on the basis that the Tribunal regards this claim as time-barred,
and having regard to Section 123 of the Equality Act 2010, the Tribunal
20
does not find that it is just and equitable to allow the claim to proceed,
although late.
(4) Separately, further, and in any event, the Tribunal also holds that the claim
has no reasonable prospects of success, and in bringing this claim, following
upon her earlier claim against the respondents, under case number
25
4103492/2017, where her Equality Act claims were withdrawn, the claimant
has conducted proceedings against the respondents in these proceedings
unreasonably and vexatiously, and so the claim should be struck out on that
basis anyway.
REASONS
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Introduction
4100324/2019 Page 3
1. This case called again before me on the morning of Monday, 24 June 2019,
at 10.00am, for a one-day public Preliminary Hearing, previously intimated to
both parties by the Tribunal by Notice of Preliminary Hearing (Preliminary
Issue) dated 3 May 2019, to consider Strike Out / Deposit Order, as
preliminary issues.
5
2. While I reserved Judgment, following the close of this Preliminary Hearing,
there has subsequently been an unfortunate, but unavoidable, delay in my
Judgment being progressed. The delay in this Judgment being issued, since
24 June 2019, had initially been down to my other judicial commitments, as
well as some annual leave, and for that delay on my part, I offer my apology
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to both parties.
3. Yet further delay was thereafter occasioned by my sick leave absence from
16 September 2019 to 25 November 2019. Parties’ representatives were
advised of that absence by the Tribunal on 16 September 2019, at which
stage it was not clear when I would return to work, and be able to progress
15
this Judgment and Reasons. I apologise to parties for this further delay.
4. While a Strike Out application under Rule 37 of the Employment Tribunals
Rules of Procedure 2013 is, as per Rules 53(1)(c) and 56, a public, rather
than a private Hearing, while an application for a Deposit Order, under Rules
39 and 53(1)(d), shall be conducted in private, Rule 56 provides that the
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Tribunal may direct that the entirety of a Hearing be in public, and that is what
I ordered, on 5 April 2019, as per standard practice in cases where there are
both Strike Out and Deposit Order applications before the Tribunal.
5. Its listing for this Preliminary Hearing followed upon a Case Management
Preliminary Hearing held before me, in private, on Friday, 5 April 2019,
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following which my written Note and Orders of the Tribunal, dated 9 April
2019, were issued to both parties under cover of a letter from the Tribunal of
10 April 2019.
6. I made a number of case management orders at that stage, including order
No. (11) where I provided that this Preliminary Hearing was fixed:
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