White v Plymouth City Council

An unfair-dismissal claim should be struck out for having no reasonable prospect of success only with great caution. Where central facts are disputed, pre-emptive strike-out will ordinarily be appropriate only in exceptional cases.

Under section 98(4) of the Employment Rights Act 1996, fairness requires assessment of the whole evidential context. An employer's reliance on an external judicial finding does not necessarily answer whether its investigation, reasoning and decision to dismiss were reasonable. A tribunal should not determine those fact-sensitive questions solely from competing written assertions where relevant factual disputes require evidence.

The claimant, a part-time family support worker, was dismissed after an altercation occurring while he was acting privately during court-ordered child contact. A District Judge had found that the claimant was the aggressor, although the claimant disputed that finding.

Employment Judge Parker, sitting at Liskeard, struck out the claimant's unfair-dismissal claim on 5 December 2011, with reasons delivered on 13 December 2011. No evidence was heard. The Employment Judge held that the Council could rely on the District Judge's finding and that dismissal for gross misconduct was highly likely to fall within the range of reasonable responses.

The claimant appealed. The central issue was whether the unfair-dismissal claim could properly be struck out without evidence where the reason for dismissal, the adequacy of the investigation, the alleged propensity for violence, and the relevance of alternative employment remained fact-sensitive matters.

1. Appeal allowed. The unfair-dismissal claim was wrongly struck out and was to proceed before the Employment Tribunal.

2. The Employment Judge had stated the statutory strike-out test, so the reference to a claim being “highly likely” to fail did not, in context, establish a separate error of law. The difference between that expression and “no reasonable prospect of success” was treated as semantic on this ground.

3. However, the Employment Judge erred by resolving a fact-sensitive unfair-dismissal claim from written assertions and submissions without hearing evidence. The Council's ET3 suggested that dismissal may have rested not solely on the District Judge's finding about the single incident, but also on an assessment that the claimant had a propensity for violence based on other material. The reason for dismissal was for the employer to prove.

4. The District Judge's finding could be relevant material, but it did not necessarily make further investigation unnecessary. The tribunal had to consider, under section 98(4) of the Employment Rights Act 1996, whether the employer acted reasonably in the circumstances and in accordance with equity and the substantial merits. That inquiry extended to the factual context, the investigation, the information that should have been available, and whether dismissal fell within the range of reasonable responses.

5. There were relevant disputes about the incident, the alleged propensity for violence, the procedural criticisms, and potentially alternative non-public-facing employment. The possibility that evidence might establish unfairness was sufficient to defeat strike-out, even if the employer had a powerful case. The judgment left open an application for a deposit order, for which the distinct test is little reasonable prospect of success.

• Employment Appeal Tribunal: Allowed the appeal and set aside the strike-out of the unfair-dismissal claim.
• Employment Tribunal: Employment Judge Parker, sitting at Liskeard, struck out the unfair-dismissal claim on 5 December 2011; reasons were delivered on 13 December 2011.