Mr M Macken v Skanska UK plc: 2201866/2020 and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 December 2021 |
| Date | 13 December 2021 |
| Citation | 2201866/2020 and Others |
| Court | Employment Tribunal |
| Published date | 01 April 2021 |
| Subject Matter | Health & Safety |
Case Number: 2201866/2020; 2202604/2020; 2204321/2020 (V)
1
EMPLOYMENT TRIBUNALS
Claimant Respondent
Mr M Macken
v
Skanska UK plc
Heard at: London Central (by CVP) On: 26 February 2021
Before: Employment Judge A James
Representation
For the Claimant: Mr L Bronze, counsel
For the Respondent: Ms C Ashiru, counsel
Note: This has been a remote hearing. The parties did not object to the
hearing being conducted remotely. The form of remote hearing was V –
video, conducted using Cloud Video Platform (CVP). It was not practicable
to hold a face-to-face hearing because of the COVID-19 pandemic and all
issues could be dealt with remotely.
JUDGMENT
(1) Claim 2201866/2020 was not validly presented because the number of the
Acas Early Conciliation Certificate on the claim form is not the same as the
number on the ACAS Early Conciliation Certificate but it would not be in the
interests of justice to reject the claim (S.18A Employment Tribunals Act
1996 (ETA) and Rule 12(1)(da) Employment Tribunal Rules of Procedure
2013 (ETR)).
(2) Claims 2202604/2020 and 2204321/2020 were not validly presented
because the number of the Acas Early Conciliation Certificate on the claim
forms is not the same as the number on the ACAS Early Conciliation
Certificate but it would not be in the interests of justice to reject the claims
(S.18A ETA and Rule 12(1)(da) ETR).
(3) Claim 2204321/2020 was not presented within three months of the dismissal
and it would have been reasonably practicable to have presented it in time.
The tribunal does not therefore have jurisdiction to hear that claim (ss.48(3)
and 111(2) Employment Rights Act 1996 (ERA) (and others)).
(4) The particulars of claim, as amended/further amended in claim
2204132/2020 provide further particulars of claims 2201866/2020 and
Case Number: 2201866/2020; 2202604/2020; 2204321/2020 (V)
2
2202604/2020 in relation to all claims except the whistleblowing detriment
claims. The application to amend the first two claims is granted in relation
to all claims except the whistleblowing detriment claims (Rule 29 ETR).
(5) The application to amend claims 2201866/2020 and/or 2202604/2020 to
include allegations of whistleblowing detriments is refused (Rule 29 ETR).
(6) The application to strike out the alleged detriments in the draft list of issues
at 5.e. and h (selecting the claimant for redundancy; failure to change the
selection matrix score when it was allegedly incorrect) and related sections
of the pleadings is granted because those detriments are intricately linked
to the claimant’s automatically unfair dismissal claims and claims in respect
of a dismissal cannot also be pursued as detriment claims (S. 47B(2) ERA
(and others) and Rule 37 ETR). Those matters will still be considered as
part of the automatically unfair and ‘ordinary’ dismissal claims.
(7) All other applications for strike out and deposit orders in relation to the
detriment claims are refused (Rules 37 and 39 ETR).
(8) The application to strike out the whistleblowing claims because the claimant
has not made a disclosure of information is refused (S.43B(1) ERA; Rule 37
ETR).
REASONS
The issues before the preliminary hearing
1 The Claimant has brought three claims:
1.1 Claim number 2201866/2020 submitted on 2 April 2020 (Claim 1);
1.2 Claim number 2202604/2020 submitted on 30 April 2020 (Claim 2);
1.3 Claim number 2204321/2020 submitted on 17 July 2020 (Claim 3).
Amended, consolidated particulars of claim were filed on filed on 13
November 2020. Further amended, consolidated Particulars of Claim were
served on 8 February 2021.
2 The issues for this hearing are helpfully summarised as follows in Ms Ashiru’s
skeleton argument. References in square brackets are to the page numbers in
the agreed preliminary hearing bundle. The issues are:
2.1 Time Limits: What do Claims 1 and 2 cover? For reasons which follow, the
respondent argues that any claims not covered by Claim 1 and Claim 2 are
subject to the not reasonably practicable (NRP) test, and the claimant is
bound to fail in relation to that test in the circumstances.
2.2 Detriments: do the alleged detriments at paras 5(a), (b), (c), (d), (e), (g) and
(h) of the Updated Draft List of Issues have no or little reasonable prospects
of success such that the claims should be struck out under rule 37
Employment Tribunal Rules of Procedure 2013 (ETR) or subject to a deposit
order under Rule 39?
2.3 Protected Disclosures:
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