Former employee's detriment claim struck out as abuse of process
A former employee's claim for protected disclosure detriment was struck out after the tribunal found the alleged acts were covered by judicial proceedings immunity and the claim was an abuse of process. A costs order of £20,000 was made.
1 min read · Last updated 18 May 2026
Case details
- #protected-disclosure
- #judicial-proceedings-immunity
- #abuse-of-process
- #early-conciliation
- #strike-out
- #totally-without-merit
- #costs-order
Key facts
- The claimant presented a claim on 23 February 2021 relying on an early conciliation certificate from 2018.
- The claim alleged post-employment detriment based on a protected disclosure made in a letter dated 14 November 2020.
- The respondent's actions complained of were statements made in litigation correspondence and submissions.
- The tribunal found the claims were covered by judicial proceedings immunity and had no reasonable prospect of success.
- The claims were struck out and certified as totally without merit.
- A costs order of £20,000 was made against the claimant in favour of St Edward Homes Ltd.
Timeline
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Employment started
The claimant began employment with the respondent (subject to dispute about employer identity).
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Employment ended
The claimant's employment ended.
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ACAS early conciliation started (Day A)
The claimant contacted ACAS, starting early conciliation for a previous matter.
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ACAS certificate issued (Day B)
The early conciliation certificate was issued.
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Alleged protected disclosure
The claimant sent an email to the respondent's in-house lawyer alleging a document was fake and threatening to report her to the SRA.
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Respondent's response
The respondent's solicitor replied, stating the claimant's report would be unfounded and that they would draw the correspondence to the tribunal's attention.
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Claim presented (Case 3301405/2021)
The claimant presented the claim using the 2018 early conciliation certificate.
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Claim rejected by EJ Lewis
Employment Judge Lewis rejected the claim as an abuse of process.
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Reconsideration hearing
The claimant applied for postponement due to ill health; the hearing was suspended and the application refused.
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Reconsideration judgment
Employment Judge George refused the reconsideration application, finding the claim was an abuse of process for failing to comply with early conciliation.
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Preliminary hearing
The tribunal struck out the claims as having no reasonable prospect of success and certified them as totally without merit. Costs and preparation time orders were made.
The legal issue
The tribunal had to decide whether the former employee's claims for detriment after making a protected disclosure were barred by judicial proceedings immunity, and whether the claims should be struck out as an abuse of process.
The outcome
The tribunal struck out the former employee's claims for protected disclosure detriment.
Key reasons:
- The alleged detrimental acts were statements made in litigation correspondence and submissions, which are covered by absolute judicial proceedings immunity.
- The claim was an abuse of process because the early conciliation certificate used was from 2018, not related to the 2020 disclosure.
- The claims had no reasonable prospect of success.
Compensation:
- No compensation awarded as the claim was struck out.
- A costs order of £20,000 was made against the claimant.
Lessons & takeaways
- Statements made in litigation are generally immune from employment tribunal claims, even if they relate to protected disclosures.
- Using an old early conciliation certificate for a new claim can be an abuse of process and lead to strike-out.
- Bringing a claim with no reasonable prospect of success can result in a costs order, especially if the claim is certified as totally without merit.
- If you have multiple claims against the same employer, ensure each claim has its own valid early conciliation certificate.
What this case shows
This case demonstrates the importance of using the correct early conciliation certificate when bringing an employment tribunal claim. The former employee used a certificate from 2018 for a claim based on events in 2020, which the tribunal found to be an abuse of process. Additionally, the alleged detrimental acts were statements made in litigation correspondence, which are protected by judicial proceedings immunity. This meant the claims had no reasonable prospect of success.
What the losing side could have done differently
The former employee could have obtained a new early conciliation certificate for the 2020 disclosure before presenting the claim. They also could have avoided relying on statements made in litigation as the basis for a detriment claim, as such statements are generally immune from challenge.
Why the result matters
This case reinforces that employment tribunals will not hesitate to strike out claims that are an abuse of process or have no reasonable prospect of success. It also highlights the risk of costs orders for claimants who pursue meritless claims. The £20,000 costs order serves as a warning to others considering similar claims.
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