Employment Tribunal – Practice and Procedure – Striking Out – Unfair Dismissal Claim
Given findings made in related High Court proceedings, the Employment Tribunal (‘ET’) concluded that the Claimant’s unfair dismissal claim had no reasonable prospects of success save on the ground of procedural fairness arising from the Respondent’s failure to adjourn the disciplinary hearing. Although it could not, therefore, be said that the entire claim had no reasonable prospect of success, the ET also found that there was no prospect of the Claimant receiving any financial award. Given there could be no declaratory remedy, and considering itself bound by the decision in Nicolson Highlandwear v Nicolson [2010] IRLR 860 EAT, the ET therefore concluded that the claim should be struck out. It further considered that it was not in the interests of justice for further substantial judicial time to be spent on this claim or for the Respondent to incur further costs. In the alternative, the ET stated that it would have made Deposit Orders on the question of fairness, save in respect of the procedural issue relating to the failure to adjourn the disciplinary hearing, and on any claim for a basic or compensatory award.
The Claimant appealed.
Held: allowing the appeal
The ET had wrongly failed to allow that a finding of unfair dismissal, even absent the possibility of any monetary remedy, could be of value (Gibb v Maidstone and Tunbridge Wells NHS Trust 2010 EWCA Civ 678 and Telephone Information Services Ltd v Wilkinson [1991] IRLR 148 EAT applied; Nicolson Highlandwear v Nicolson departed from). This had also led the ET to err when determining whether it was in the interests of justice for the claim to proceed. The ET having found that there were reasonable prospects of a finding of unfair dismissal on procedural grounds, it could not be said that such a finding would be of no value or that the interests of justice could not require that a Respondent be held to account, even if that could not lead to any financial award for the employee concerned. Other than the procedural unfairness issue it had identified, the ET had been entitled to find that all other parts of the claim of unfair dismissal should be struck out. That did not, however, justify the striking out of the entire claim and to that extent the ET’s Judgment would be set aside.
Eady J
[2020] UKEAT 0290 – 19 – 0603
Bailii
England and Wales
Employment
Updated: 12 November 2021; Ref: scu.653269