EAT Practice and Procedure : Striking-Out/Dismissal – VICTIMISATION DISCRIMINATION – Protected disclosure
The Claimant, a worker on the permanent staff of a care home, asserted in her ET1 that her dismissal was because she had made protected disclosures, and not the purported reason (which was gross misconduct, for dragging a resident across the floor). An Employment Judge struck her claim out as having no reasonable prospect of success, despite holding that the Claimant might well establish that immediately prior her dismissal she had made protected disclosures. Held that she was not entitled to do so, since the reasons for dismissal were known only to the employer, such that they could be established by an Employment Tribunal only after hearing evidence, and could not be assumed. There was here a dispute of fact which needed to be resolved by a hearing, and not by pre-emptive strike-out.
The case raised the question whether a claimant who but for making a protected disclosure would not have been dismissed for misconduct, but merely warned, could assert a claim under section 103 Employment Rights Act, where it would have to be shown that the ‘principal’ reason for dismissal was protected disclosure, or whether she would be restricted to making a section 47B (detriment) claim if at all. This was best resolved by reference to the particular facts of the case.
Langstaff P J
[2014] UKEAT 0015 – 14 – 2506
Bailii
England and Wales
Cited by:
Cited – B v John Reid and Sons (Strucsteel) Ltd EAT 21-May-2015
EAT Unfair Dismissal: Automatically Unfair Reasons – Automatic Unfair Dismissal – Section 100(1)(e) Employment Rights Act 1996 – Applying the two-stage approach laid down by the EAT in Oudahar v Esporta Group Ltd . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 23 December 2021; Ref: scu.538271