Eastman v Tesco Stores Ltd

At a pre-hearing review, an Employment Tribunal may receive oral and documentary evidence and resolve material factual disputes before deciding whether a claim has no reasonable prospect of success. The guidance against striking out where there is a crucial unresolved factual dispute does not prevent that course where evidence has been heard and the dispute has been determined.

Apparent authority does not arise where the Tribunal has found that no representation or agreement was made.

The claimant brought an unfair dismissal claim after a four-year career break. At a pre-hearing review, the Employment Judge heard oral evidence, considered documents and found that she had received the employer's career-break materials, completed the application, and had not been guaranteed a return to her former job.

The claim was struck out as having no reasonable prospect of success under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations. The claimant appealed, contending that the Judge had erred on apparent authority and had impermissibly resolved a central factual dispute on a strike-out application.

1. Appeal dismissed. The Employment Judge had found that no express agreement or guarantee of a return to the claimant's former job had been made. The issue of Yinka's apparent or ostensible authority was therefore immaterial. It did not arise in the absence of the alleged representation.
2. Rule 18(2)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations permitted the Judge at the pre-hearing review to consider representations and evidence, including oral and documentary evidence. The Judge was entitled to resolve the factual disputes about the application form and the alleged guarantee after hearing that evidence.
3. The guidance in North Glamorgan NHS Trust v Ezsias and Balls v Downham Market High School did not prevent strike-out. In those cases no evidence had been called and material factual disputes remained unresolved. Here, the material disputes had been resolved against the claimant.
4. On those findings, the Judge was entitled to conclude that the unfair dismissal claim had no reasonable prospect of success. The reasons supporting that conclusion were not challenged on the appeal.

• Employment Appeal Tribunal: the appeal against the strike-out was dismissed.
• Employment Appeal Tribunal: a paper-sift rejection under rule 3(7) was followed by an appellant-only hearing under rule 3(10), at which the appeal was permitted to proceed on two grounds.
• Employment Tribunal: following a pre-hearing review on 15 July 2011, the unfair dismissal claim was struck out under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations by reasons promulgated on 19 August 2011.