WM A Merrick (Formerly t/a WM A Merrick & Co Solicitors) v Simpson

An application to strike out an unfair dismissal claim should ordinarily be determined as a preliminary issue where the issue is short and, if resolved for the respondent, would dispose of the claim. Although Rule 18(6) permits such an application to be heard at either a pre-hearing review or the merits hearing, the overriding objective may require an earlier hearing. The question whether the claimant was dismissed under section 95(1)(a) of the Employment Rights Act 1996 was therefore suitable for a pre-hearing review.

The respondent, a solicitor, had been suspended from practice following disciplinary proceedings. His former employee brought claims including unfair dismissal, alleging that her employment ended because of the suspension. The Employment Tribunal directed that the respondent’s application to strike out the unfair dismissal claim should be heard with the full merits hearing.

The respondent appealed. The central issue was whether the alleged absence of a dismissal, and the application under Rule 18(7)(b), should be determined in advance as a preliminary issue.

1. Appeal allowed. The full merits hearing was vacated and the matter was remitted for a pre-hearing review.
2. The Court of Appeal’s decision in Rose v Dodd, reported at [2005] ICR 1776, established that intervention in a solicitor’s practice by the Law Society did not automatically terminate the employment of an employee of the firm. The same principle applied to suspension from practice. The claimant’s pleaded case therefore raised an arguable issue as to whether the alleged suspension constituted a dismissal.
3. The respondent’s application presented a short and clearly defined question. If the application succeeded, the remaining unfair dismissal claim would be wholly disposed of. That made the issue eminently suitable for determination at a preliminary hearing.
4. Under Rule 18(6), a strike-out application of this kind could be heard either at a pre-hearing review or at the substantive hearing. That discretion had to be exercised consistently with the overriding objective under Regulation 3 of the applicable Regulations. In the circumstances, the overriding objective plainly required the application to be dealt with before the full merits hearing.
5. The pre-hearing review was directed to determine only whether the unfair dismissal claim had any reasonable prospect of success under Rule 18(7)(b), in accordance with the respondent’s written application.

• Employment Tribunal: directed that the respondent’s strike-out application be heard with the full merits hearing.
• Employment Appeal Tribunal: allowed the appeal, vacated the merits hearing and directed a pre-hearing review.