Mbuisa v Cygnet Healthcare Ltd: EAT 7 Mar 2019

PRACTICE AND PROCEDURE – Striking-out/dismissal
The Claimant, acting in person, pursued a number of claims before the Employment Tribunal (‘the ET’) arising out of his employment with the Respondent and what he claimed was his constructive dismissal. He did not have sufficient continuous service to pursue a claim of unfair dismissal under section 98 Employment Rights Act (‘ERA’) but claimed he had been automatically unfairly (constructively) dismissed for a reason contrary to section 100 ERA. After attempts to clarify the Claimant’s claims at two Preliminary Hearings, the ET indicated it was considering whether the section 100 constructive dismissal claim should be struck out. After receiving further written representations from the Claimant, the ET went on to strike out this claim, concluding that – on the Claimant’s own case – he was not suggesting the matters that had caused him to resign from his employment (assaults, a threatened assault and being required to carry out lifting work when he was not fit to do so) had occurred by reason of any actions he had taken for section 100 purposes.
The Claimant appealed. The Respondent did not contest the appeal.
Held: allowing the appeal
The ET erred in striking out this claim as it had assumed a case for the Claimant that did not fully engage with what he was trying to say. While the immediate reason/s why he left his employment – the assaults, threatened assault and requirement to do lifting work – might not have occurred directly because of anything he had said or done relevant to section 100, the Claimant was saying that the Respondent had allowed circumstances to exist such that these things could happened because of his section 100 concerns. The question for the ET was whether there was no reasonable prospect of the Claimant being able to show that his raising of matters falling under section 100 was the reason or principal reason for why the Respondent allowed circumstances to arise such that he could be assaulted, threatened with assault or required to do lifting work. Appreciating the challenges faced by the ET in seeking to case manage claims that were poorly pleaded, striking out the claim had been a draconian step (depriving the Claimant of the right to have his case determined on the merits) that was premised on a misunderstanding of the case. The decision could not stand and would duly be set aside. The appropriate course to take in this case was to record how the case was in fact being put, ensure that the original pleading was formally amended and make any appropriate deposit order if it was considered that the case had little reasonable prospect of success.


[2019] UKEAT 0119 – 18 – 0703




England and Wales


Updated: 05 July 2022; Ref: scu.637646