The respondent bus driver had claimed unfair dismissal following an accident. The Employment Tribunal struck out his case as having no reasonable prospect of success, but the case had been re-instated by the EAT.
Held: the power given in the rules to strike out a case was draconian and to be used in exceptional cases only. Here there were clearly several issues of fact yet to be determined and which might affect the result. The ET judge had been wrong to reach a conclusion on yet untested and unadmitted allegations.
Lord Justice Clerk
[2012] ScotCS CSIH – 46, FA 25
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Scotland
Citing:
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Appeal from – Reilly v Tayside Public Transport Company Ltd and Another EAT 27-May-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
At a preliminary hearing at which the claim was struck out, the Employment tribunal judge had erred in acting upon factual conclusions going beyond those . .
Cited – Balls v Downham Market High School and College EAT 15-Nov-2010
EAT UNFAIR DISMISSAL
Strike out. Whether claim had reasonable prospects of success. Whether failure to actively pursue a claim. Employment Tribunal failed to have regard to relevant law and reached . .
Cited – Iceland Frozen Foods Ltd v Jones EAT 29-Jul-1982
Members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to . .
Cited – Ezsias v North Glamorgan NHS Trust CA 7-Mar-2007
The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT.
Held: A claim should not be struck out where, as here, there were facts . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 10 November 2021; Ref: scu.460285