Lockey v East North East Homes Leeds

An employment tribunal should not strike out unfair- or wrongful-dismissal claims where material facts are disputed and require evaluation at a hearing. A striking-out application must not become a mini-trial, unless the factual assertions have no real substance, for example because contemporary documents clearly contradict them. In an unfair-dismissal claim, the tribunal must assess the employer’s decision as a whole. If an important reason for dismissal is arguably flawed, it must examine whether dismissal would nevertheless have occurred and whether it fell within the range of reasonable responses. Disobedience to a reasonable instruction may constitute misconduct without necessarily amounting to gross misconduct warranting summary dismissal.

Mr Lockey appealed against an Employment Tribunal judgment dated 12 April 2010 striking out his claims for unfair dismissal and breach of contract on the ground that they had no reasonable prospect of success. He alleged that his employer had dismissed him summarily for refusing an instruction about repairing a property door and for abusive conduct. He disputed the reasonableness of the instruction and aspects of the alleged abuse. The employer had not interviewed the tenant, whom Mr Lockey said could contradict part of its case. The appeal concerned whether those disputed matters could properly be resolved on a pre-hearing strike-out application without hearing evidence.

1. Appeal allowed. The claims were remitted to the Employment Tribunal for a full hearing.
2. A striking-out application differs fundamentally from a hearing on the merits. The tribunal cannot conduct a mini-trial. Issues depending on disputed facts cannot ordinarily be resolved at that stage unless the factual assertions plainly lack real substance, such as where contemporaneous documents contradict them. The reasoning in ED&F Mann Liquid Products Ltd v Patel & Another was applicable.
3. In an unfair-dismissal claim, the tribunal reviews the reasonableness of the employer’s decision. Evidence from the decision maker may be important, and the tribunal cannot properly test the decision maker’s reasoning on a strike-out application. Since it was arguable that the employer had failed to investigate the allegation concerning conduct in front of the tenant, it was necessary to examine the decision to dismiss as a whole. The tribunal would have to determine whether dismissal would have occurred on the remaining allegations and whether dismissal was reasonable.
4. Disobedience to a reasonable management instruction may amount to misconduct, but it does not necessarily constitute gross misconduct justifying summary dismissal. A warning may be appropriate where the employee acted from a genuinely held view or the instruction had not previously been applied to him. Whether swearing at a supervisor by telephone amounted to gross misconduct was also fact-sensitive.
5. The wrongful-dismissal claim likewise depended on disputed facts concerning the instruction, the alleged abuse and whether the conduct amounted to gross misconduct entitling the employer to terminate without notice. A hearing was indispensable.
6. The special public-interest considerations identified in North Glamorgan NHS Trust v Ezsias for discrimination and whistleblowing claims did not apply to ordinary unfair- or wrongful-dismissal claims, but its reasoning concerning disputed facts and strike-out remained relevant.

• Employment Tribunal, Leeds — By judgment dated 12 April 2010, Employment Judge Cox struck out the unfair-dismissal and breach-of-contract claims as having no reasonable prospect of success.
• Employment Appeal Tribunal — Allowed the appeal and remitted the case for a full hearing.