Shea v Micros Fidelio

A litigant in person may use “wrongful dismissal” interchangeably with “unfair dismissal”. The claim must be construed from the claim form and supporting documents, with appropriate generosity. It was reasonably arguable that the claim included unfair dismissal and detriment complaints under the protected disclosure provisions of the Employment Rights Act 1996. Earlier unappealed case-management orders may nevertheless have narrowed the issues. If they had not done so, a claim of unfair dismissal or protected-disclosure detriment could not lawfully be determined by a judge sitting alone.

The claimant appealed after Employment Judge Burgher held that he was pursuing only a wrongful dismissal claim, dismissed the claim and ordered costs. Earlier case-management directions by Employment Judge Haynes had treated the proceedings as a breach of contract claim suitable for a judge-alone hearing. The claimant contended that his claim form and supporting documents reasonably disclosed unfair dismissal and detriment under the protected disclosure provisions of the Employment Rights Act 1996.

The Employment Appeal Tribunal, sitting as a preliminary hearing, considered whether the appeal had reasonable prospects of success and whether the earlier directions controlled the scope and composition of the hearing.

1. The appeal had reasonable prospects of success. Construing the claim form and supporting documents, it was reasonably arguable that the claimant had brought complaints of unfair dismissal and unfair detriment under the protected disclosure provisions of the Employment Rights Act 1996.
2. A litigant in person is entitled to generous treatment in the Employment Tribunal. Although the claimant and his former representative had repeatedly described the case as one of wrongful dismissal, it was arguable that the expression had been used interchangeably with unfair dismissal. The Employment Judge therefore might have erred in holding the claimant to that description.
3. The two earlier case-management orders presented a separate issue. They had not been appealed and might have placed the proceedings on a course confined to wrongful dismissal. Applying the approach identified in Gayle [2011] EWCA Civ 928, legally permissible case-management decisions should not readily be overturned.
4. If the proceedings did include unfair dismissal or protected-disclosure detriment, and the earlier orders had not disposed of those claims, they could not lawfully have been determined by a judge sitting alone under section 4 of the Employment Tribunals Act 1996. Those issues required determination by a three-person Employment Appeal Tribunal.
5. The matter was accordingly directed to a further three-person EAT hearing, category B, for half a day.

• Employment Tribunal: Employment Judge Burgher held that the claimant was not bringing an unfair dismissal complaint, dismissed the claim and ordered costs.
• Review: A Review Judgment sent on 21 August 2010 maintained that the claimant had not alleged treatment on the grounds of a protected disclosure.
• Employment Appeal Tribunal: At a preliminary hearing, the EAT held that the appeal had reasonable prospects of success and directed a further three-person EAT hearing.