The employment tribunal erred in striking out a claim of constructive unfair dismissal at a preliminary hearing. The claimant alleged that multiple incidents occurred over a period of about ten months which together amounted to a cumulative breach of the implied duty of trust and confidence. There were a number of material disputes of fact. The tribunal cited, but failed to apply, the stringent test for a strike out. The tribunal failed to keep in mind that failure to resign in response to earlier incidents may not be fatal to such a claim, if there are then further incidents that could also contribute to a breach of the implied duty: Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1. Taken at its highest, the complaint was arguable and could not properly have been struck out.
The tribunal did not, in all the circumstances of the case, err in refusing an application to amend, in respect of a complaint of sexual harassment that was discrete and significantly out of time. The tribunal did err in refusing an application to amend in respect of a complaint of victimisation, including by constructive dismissal. The factual conduct said to amount to a protected act (a grievance alleging sexual harassment), and the factual conduct said to amount to victimisation, were already pleaded. The claimant had not hitherto pleaded that that conduct was because of the protected act, which was an essential component of a complaint of victimisation. However, the tribunal failed to consider, or explain if it had considered, what the impact of allowing the amendment would be on the evidential scope of the claims and the hearing. The matter was remitted to the tribunal to consider the application afresh.
His Honour Judge Auerbach
[2021] UKEAT 2019-001201
Bailii
England and Wales
Employment
Updated: 27 December 2021; Ref: scu.670146