Mbuisa v Cygnet Healthcare Ltd

An Employment Tribunal should not strike out a poorly pleaded automatic unfair constructive dismissal claim where the claimant has a reasonably arguable causal case under section 100 of the Employment Rights Act 1996. The relevant question is whether the protected health-and-safety action was, or was the principal reason for, the employer’s conduct which created the circumstances causing the resignation. It need not be the direct reason for each immediate incident relied on by the employee.

Strike-out for no reasonable prospect of success is a draconian and exceptional measure. Where a litigant in person’s case is unclear but potentially viable, the Tribunal should identify and record the case being advanced, permit a formal amendment, and consider a deposit order if appropriate.

The Claimant resigned after alleged assaults, a threatened assault and a requirement to undertake lifting work while unfit. He alleged that the Respondent’s failures to protect his health and safety amounted to a fundamental breach of contract and that his constructive dismissal was automatically unfair under section 100 of the Employment Rights Act 1996.

The Leeds Employment Tribunal struck out that claim. It held that the Claimant had not alleged that the Respondent’s contractual breach was caused by conduct falling within section 100. The Claimant, acting in person, appealed. The Respondent did not resist the appeal.

The central issue was whether the Tribunal had misunderstood the pleaded causal case and consequently erred in striking it out.

1. Appeal allowed. The Employment Tribunal’s strike-out decision was set aside. The automatic unfair constructive dismissal claim was remitted to be considered with the remaining claims.

2. Constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996 requires proof of a fundamental contractual breach, resignation in response to that breach, and no waiver of it. The Claimant relied on the implied obligation of trust and confidence, including an alleged failure to protect his health and safety.

3. The Tribunal had framed the case too narrowly. The Claimant did not contend that his protected health-and-safety actions directly caused the assaults, threatened assault, or lifting requirement. His case was that, because he raised health-and-safety concerns within section 100, the Respondent reacted defensively and failed to act, thereby allowing the circumstances which caused his resignation.

4. Applying the approach in Berriman v Delabole Slate, the correct strike-out question was whether there was no reasonable prospect that the Claimant could prove that his section 100 actions were the reason, or principal reason, for the Respondent’s inaction. The possible causal chain was capable of founding an automatic unfair dismissal claim.

5. Strike-out under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 summarily determines a claim and is a draconian step. Particular caution was required because the Claimant was unrepresented and his lengthy narrative particulars were unclear. The appropriate course was to identify the case, permit amendment of the claim form, and consider a deposit order if the clarified claim had little reasonable prospect of success.

• Employment Appeal Tribunal: Allowed the appeal and set aside the strike-out of the section 100 automatic unfair constructive dismissal claim: [2019] UKEAT 0119_18_0703.
• Leeds Employment Tribunal: Employment Judge Cox struck out the Claimant’s automatic unfair constructive dismissal claim in a judgment sent to the parties on 16 February 2018.