Ghumra v Home Office

A claim may be struck out only where it has no reasonable prospect of success. A claim with little reasonable prospect of success engages the lower threshold for a deposit order, not strike-out. The distinction is particularly important where central facts are disputed. Dismissal claims concerning the employer’s reason for dismissal or the fairness of dismissal may require a full merits hearing, even where they are likely to fail.

The claimant appealed against a preliminary decision of the Watford Employment Tribunal, which struck out various claims against her former employer. The claims included unfair dismissal, automatic unfair dismissal for protected disclosures, disability discrimination, detriment for whistleblowing, harassment, notice pay and breach of contract.

The Employment Tribunal held that the claims had no reasonable prospect of success and that some were out of time. The appeal principally concerned whether the dismissal claims had been assessed using the correct strike-out threshold and whether they should proceed to a full hearing.

The appeal was allowed in part. The dismissal claims were remitted to the Employment Tribunal for a Full Merits Hearing. A Directions Hearing was ordered to manage preparation and determine whether deposits should be ordered and, if so, their amount. There was no order as to costs.

1. Rule 37(1)(a) of the 2013 Employment Tribunal Rules permits strike-out only where a claim has no reasonable prospect of success. This is a high threshold, especially in discrimination and whistleblowing cases where central facts are disputed.
2. The threshold for a deposit under Rule 39(1) is lower: the allegation or argument must have little reasonable prospect of success. The tribunal must make reasonable enquiries into the paying party’s ability to pay under Rule 29(2).
3. Procedural observations about clearing claims with little or no merit do not alter the statutory strike-out test. The Employment Judge erred by applying the lower “little merit” approach to the dismissal claims.
4. The reason for dismissal, including whether it was capability, a protected disclosure or disability, and the fairness of any capability dismissal under section 98(4) of the Employment Rights Act 1996, required determination at a full hearing.
5. The pre-termination claims were permissibly treated as time-barred because the continuing-act argument was rejected and no extension case was advanced.

• Employment Appeal Tribunal: allowed the appeal in part, remitted the dismissal claims for a Full Merits Hearing, directed a further hearing on case management and possible deposits, and made no order as to costs.
• Watford Employment Tribunal: struck out the claims in a Reserved Judgment promulgated with Reasons on 17 December 2014. The Employment Appeal Tribunal held that the dismissal claims had been subjected to the wrong threshold.