Brailsford v John Reid & Sons (Strucsteel) Ltd

For a claim under section 100(1)(e) of the Employment Rights Act 1996, the tribunal must first determine whether the employee reasonably believed there were serious and imminent circumstances of danger and took, or proposed to take, appropriate protective steps. Only then does it decide whether those steps were the sole or principal reason for dismissal.

A strike-out application must be decided on the case actually advanced. A tribunal must identify the substance of a litigant in person’s complaint, but is not required to construct a different claim from background documents or its own factual recitation after the claimant has been given opportunities to clarify the case.

The Claimant, a trainee engineer employed from February 2014, did not return to work after meetings concerning his performance, training and a proposed probationary period. He reported absence through stress and was dismissed the following day.

The Southampton Employment Tribunal struck out his automatic unfair-dismissal complaint under section 100 of the Employment Rights Act 1996 as having no reasonable prospects of success. It understood his case to concern an alleged failure to provide training and a general future health-and-safety risk.

On appeal, the Claimant contended that his absence was a protective step against serious and imminent danger to his mental health caused by bullying and stress, engaging section 100(1)(e). The issue was whether the Tribunal had erred by striking out that claim without hearing evidence.

1. Appeal dismissed. The Employment Tribunal did not err in striking out the section 100 claim as it had been put before it.
2. The correct approach to section 100(1)(e) is the two-stage approach in Oudahar. First, the tribunal determines whether the employee reasonably believed there were serious and imminent circumstances of danger and took, or proposed to take, appropriate protective steps. Secondly, if those criteria are met, it determines whether the sole or principal reason for dismissal was the taking or proposed taking of those steps.
3. The relevant facts operating on the employer’s mind need concern the employee’s actions, rather than the employee’s underlying reasons for taking them. That approach was compatible with Kuzel.
4. Where the employer’s reason for dismissal is genuinely in issue, striking out without evidence may be unsafe. That issue did not arise here. The Claimant had not advanced before the Tribunal the case that he removed himself from work to protect his mental health from bullying or stress.
5. The Tribunal had sought clarification through further statements and at the preliminary hearing. It was entitled to determine the clarified section 100 case: an alleged report of unspecified danger arising from inadequate training. The Claimant had not advanced a prima facie case satisfying the first stage of the Oudahar test.
6. A tribunal must address the substance of a litigant in person’s case, but need not search background documents or reformulate factual material to devise a different cause of action. Permission to appeal was refused.

• Employment Appeal Tribunal: appeal dismissed in [2015] UKEAT 0036_15_2105.
• Southampton Employment Tribunal: by a judgment sent on 24 June 2014, it struck out the automatic unfair-dismissal claims under sections 100 and 103A of the Employment Rights Act 1996 as having no reasonable prospects of success; other claims were dismissed or withdrawn.