Whistleblowing claim struck out: when the disclosure comes too late
Two warehouse operatives had their automatic unfair dismissal claims for whistleblowing struck out because the alleged breaches happened before they made their protected disclosure. The tribunal said the claims had no reasonable prospects of success.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimants had 8 months' continuous employment and no right to ordinary unfair dismissal.
- They resigned with immediate effect on 26 September 2022, relying on a letter making complaints about working conditions.
- The letter also served as the protected disclosure and assertion of statutory rights.
- The alleged repudiatory breaches had already occurred before the letter was sent.
- The tribunal struck out the automatic unfair dismissal claims as having no reasonable prospects of success.
Timeline
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Claimants' letter of resignation and protected disclosure
The claimants sent a letter entitled 'constructive dismissal letter' making complaints about breaches of Working Time Regulations, health and safety, and sex discrimination, and resigned with immediate effect.
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Preliminary hearing
A preliminary hearing was held, and a List of Issues was set out.
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Respondent's strike-out application
The respondent applied to strike out the automatic unfair dismissal claims on the basis that the chronology made it impossible for the dismissal to be motivated by the protected disclosure.
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Claimants' response to strike-out application
The claimants replied, raising for the first time a claim under s.104(1)(b) ERA (assertion of a statutory right).
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Strike-out hearing
The tribunal heard the strike-out application and dismissed the automatic unfair dismissal claims.
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Written reasons issued
The tribunal issued written reasons for the judgment.
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Final hearing listed
The case remains listed for a 5-day final hearing on the remaining sex discrimination claim.
The legal issue
The tribunal had to decide whether the claimants' claims for automatic unfair dismissal based on whistleblowing and assertion of statutory rights had any reasonable prospects of success, given that the alleged breaches happened before the disclosure letter was sent.
The outcome
The tribunal struck out the automatic unfair dismissal claims, finding they had no reasonable prospects of success. The key reason was that the alleged repudiatory breaches occurred before the claimants' letter of 26 September 2022, which served as both their resignation and the protected disclosure. As a result, the dismissal could not have been motivated by the disclosure.
The claims for automatic unfair dismissal were dismissed in their entirety. The case remains listed for a 5-day final hearing on the remaining sex discrimination claim.
No compensation was awarded as the claims were struck out.
Lessons & takeaways
- For a whistleblowing claim to succeed, the protected disclosure must be made before the employer's decision to dismiss – timing is critical.
- If you resign before making a protected disclosure, you cannot later claim that the resignation was caused by the disclosure.
- Employees with less than two years' service cannot bring ordinary unfair dismissal claims, but can still bring automatic unfair dismissal claims if the reason is whistleblowing or asserting a statutory right.
- Tribunals will strike out claims that have no reasonable prospects of success at an early stage to save time and costs.
When the timing of a whistleblowing complaint matters
Two warehouse operatives resigned with immediate effect in September 2022, sending a letter that complained about working conditions and also served as a protected disclosure. They claimed automatic unfair dismissal for whistleblowing. However, the tribunal found that the alleged breaches had already happened before the letter was sent, meaning the employer could not have been motivated by the disclosure when the decision to dismiss was made.
What the employer did right
Euro Car Parts Ltd applied to strike out the claims early, arguing that the chronology made it impossible for the dismissal to be linked to the disclosure. The tribunal agreed, noting that the claimants' case was 'conclusively disproved' by the undisputed timeline.
Why this case matters
This case is a reminder that whistleblowing claims depend on the sequence of events. A protected disclosure must be a cause of the dismissal, not just a complaint made after the decision has already been taken. Employees considering a whistleblowing claim should ensure they make the disclosure before any adverse action by their employer. The case also shows that tribunals will not hesitate to strike out weak claims at an early stage, even when the claimants are representing themselves.
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