Sajid v Bond Adams LLP Solicitors

A claim for unfair dismissal should not be struck out where there is a crucial core of disputed fact requiring assessment of credibility. Striking out is a rare and draconian power in fact-sensitive dismissal claims. It is not justified because the employer’s case appears strong.

An exceptional case may arise where there is a clear admission of gross misconduct or incontrovertible documentary proof. Absent such features, the tribunal must determine the factual dispute at a full hearing. The same approach applies where disputed facts concerning disability could support an inference of direct discrimination or discrimination arising from disability. The EAT applied [2012] IRLR 755 CS.

The Claimant, a paralegal employed by a solicitors’ firm, was summarily dismissed following allegations of gross misconduct. He admitted sending certain letters and emails, but maintained that he had authority to do so and denied other allegations. He alleged unfair dismissal and disability discrimination connected with a speech impediment.

The Employment Tribunal struck out the claims concerning dismissal under Rule 37(1)(a), while allowing other disability discrimination claims to proceed. It treated the Claimant as having admitted misconduct. The Claimant appealed, contending that the dismissal claims turned on fundamental factual disputes and should not have been struck out.

1. Appeal allowed. The Employment Judge erred in striking out the unfair dismissal and disability discrimination claims relating to dismissal.
2. Under Rule 37(1)(a) of the Employment Tribunal Rules 2013, an unfair dismissal claim should be struck out only in rare and exceptional circumstances where central facts are disputed. Applying Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly, the EAT held that a tribunal must not pre-empt a full hearing by resolving a crucial factual dispute through an impromptu assessment of the evidence.
3. There was a wholesale dispute between the Claimant and the senior partner about authority, misconduct and the genuine reason for dismissal. The disciplinary investigator had preferred the partner’s evidence, but the partner initiated the investigation and made the dismissal decision. If his account were untrue, the employer could not establish misconduct as the principal reason for dismissal under section 98 of the Employment Rights Act 1996.
4. The Claimant had admitted particular acts, but had not admitted that they were misconduct, still less gross misconduct. His case was one of confession and avoidance: he asserted authority for the acts. The dispute depended upon credibility and was not conclusively resolved by documents. The apparent strength of the employer’s case did not supply the exceptional feature required for strike-out.
5. The direct disability discrimination and discrimination-arising-from-disability claims also depended on the disputed facts. Dismissal plus disability alone would not establish either claim. However, evidence that the decision-maker was embarrassed by the Claimant’s speech impediment could permit an inference of a prohibited reason or engage the burden-of-proof provisions.
6. The dismissal-related claims were restored. The issue whether a deposit order should be made was remitted for consideration.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and set aside the strike-out of the dismissal-related claims.
• Employment Tribunal (Leicester): on 18 March 2015 struck out the unfair dismissal and dismissal-related disability discrimination claims under Rule 37(1)(a) of the Employment Tribunal Rules 2013.