Reilly v Tayside Public Transport Company Ltd & Anor

Strike-out at a pre-hearing review is a draconian measure requiring a high hurdle. Where the pleaded case raises factual issues that cannot be resolved from documents, the tribunal should assume, for the purpose of the application, that the claimant will prove the matters set out in the claim. It should not assess disputed evidence or make firm factual findings when oral evidence and credibility testing are required. Article 6 requires careful regard to the claimant’s right to a fair hearing. An Employment Judge sitting alone cannot decide whether dismissal fell within the range of reasonable responses; that issue must be determined by a tribunal comprising the Employment Judge and two lay members.

The claimant appealed against an Employment Tribunal judgment registered on 2 September 2010. At a pre-hearing review, the tribunal dismissed his complaint of unfair dismissal under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, holding that it had no reasonable prospects of success.

The claimant had been dismissed after driving a bus which collided with a pedestrian bridge. He alleged procedural unfairness, inadequate information about a route diversion, improper consideration of culpability and inconsistent treatment. The central issues were whether the tribunal had been entitled to strike out the claim on documents alone and whether an Employment Judge sitting alone could decide that dismissal was within the range of reasonable responses.

1. Appeal allowed. The claim was remitted to a freshly constituted Employment Tribunal for a full hearing.
2. Strike-out under rule 18(7)(b) is a draconian measure. The employer must overcome a high hurdle. At a pre-hearing review, the tribunal should assume that the claimant will prove everything advanced in the ET1. It should not determine disputed credibility or reliability issues, assess incomplete evidence, or make firm factual findings where relevant oral evidence remains to be heard.
3. The pre-hearing review had not been a hearing of whether the claimant was fairly dismissed. The Employment Judge had gone too far by assessing the evidence and discounting potentially relevant evidence from Mr Brown without an adequate basis. The disputed matters required a full evidential hearing.
4. The tribunal was required to have regard to Article 6 and the claimant’s right to a fair hearing. The availability of legal-aid funding did not alter the applicable strike-out test.
5. Although an Employment Judge could consider the strike-out application alone, an Employment Judge sitting alone could not decide whether dismissal fell within the range of reasonable responses. That issue required determination by an Employment Tribunal of three, comprising the Employment Judge and two lay members, whose majority view could determine the case.

• Employment Tribunal, Dundee: Judgment registered on 2 September 2010. The claimant’s unfair-dismissal claim was dismissed under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 as having no reasonable prospects of success.
• Employment Appeal Tribunal: Appeal allowed and the case remitted to a freshly constituted Employment Tribunal for a full hearing.