Short v Birmingham City Council & Anor

An Employment Tribunal may strike out a claim under rule 18(7)(b) only where it has no reasonable prospect of success. It errs by asking whether the claimant is unlikely to succeed, or would fail on the balance of probabilities. The jurisdiction is draconian and requires particular caution where whistleblowing dismissal or detriment claims depend on disputed causation and should ordinarily be tested at a full hearing.

A deposit order under rule 20 has a lower threshold. It may be made where a claim has little reasonable prospect of success, even though it cannot properly be struck out.

The claimant appealed against an Employment Tribunal judgment of 25 September 2012 which struck out her claims for ordinary unfair dismissal, automatic unfair dismissal for protected disclosures under section 103A, and whistleblowing detriment under section 47B of the Employment Rights Act 1996.

Her claims concerned an investigation and disciplinary proceedings arising while she was on sick leave, and her eventual dismissal. The central issue was whether the alleged treatment and dismissal were because of protected disclosures or alleged misconduct in undertaking hypnotherapy work while absent from school.

The Tribunal had struck out the claims under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations. The EAT considered both the proper strike-out test and the respondents’ renewed application for a deposit order.

1. Appeal allowed. The Employment Judge misdirected herself by asking whether, on the balance of probabilities, the claimant would not succeed in her section 103A claim, and whether she was unlikely to establish causation in the detriment claim. Those formulations did not apply the rule 18(7)(b) test of no reasonable prospect of success.

2. Strike-out without evidence is a draconian step. Particular caution is required in whistleblowing victimisation claims, including claims concerning dismissal and detriment, because disputed causation may require examination at a full merits hearing. On the material before the Employment Judge, it could not properly be said that any of these claims had no reasonable prospect of success.

3. The respondents could not preserve the strike-out by contending that the result was plainly and unarguably correct despite the misdirections. The strike-out order was set aside and the claims were remitted for a full merits hearing before a differently constituted Employment Tribunal.

4. However, the EAT could determine the alternative deposit application under section 35(1) of the Employment Tribunals Act 1996. Rule 20 imposes a lower threshold than strike-out. The claims had little reasonable prospect of success, so the claimant was ordered to pay a £500 deposit within 21 days of the seal date of the order.

• Employment Appeal Tribunal: appeal allowed; the strike-out order was set aside, a deposit order was made, and the matter was remitted for a full merits hearing.
• Employment Tribunal: at a pre-hearing review, the claimant's claims were struck out under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations by a judgment dated 25 September 2012.