N WHITE v HC-ONE OVAL LTD

The Employment Appeal Tribunal allowed the claimant's appeal against an Employment Tribunal's order striking out her unfair dismissal claim as having no reasonable prospect of success. The central legal principles were that a request for voluntary redundancy does not automatically preclude an unfair dismissal complaint, the employer bears the initial burden under section 98 of the Employment Rights Act 1996 of proving the reason for dismissal, and that strike out under rule 37(1)(a) should be used sparingly and only where there are no reasonable prospects of success.

The Employment Appeal Tribunal found that the Employment Tribunal had failed to take the claimant's case at its highest and had not engaged with disputed factual matters material to the reason for and fairness of the dismissal, including the claimant's allegation that the employer had recruited a new receptionist to replace existing part-time staff and that she had been denied the administrator role. Because those factual disputes were central and not amenable to summary determination, the Employment Appeal Tribunal held that the strike out was an error of law and remitted the claim to a full merits hearing (not before the same Employment Judge).

Background and parties: The claimant was a part-time receptionist employed at a care home. The respondent is a care-home operator. In 2018 the respondent carried out a redundancy exercise and the claimant requested voluntary redundancy; her employment ended on 8 October 2018. The claimant alleged that the respondent had manufactured a position in which a recently recruited receptionist was retained on a full-time basis to perform reception and administrator duties and that she had not been offered the administrator role; she contended that the process was unfair and amounted to unfair dismissal.

(i) Nature of the claim / relief sought: The claimant brought a claim of unfair dismissal. Relief sought is not stated in the judgment.

(ii) Issues framed by the court: Whether the Employment Tribunal was entitled to strike out the unfair dismissal claim as having no reasonable prospect of success because the claimant had volunteered for redundancy; whether voluntary redundancy precluded an unfair dismissal complaint; whether the Employment Tribunal had properly applied the high test for strike out and taken the claimant's case at its highest; whether there were disputed facts relevant to the reason for and fairness of the dismissal that required a full merits hearing.

(iii) Reasoning and conclusion: The Employment Appeal Tribunal reviewed the statutory framework including the right not to be unfairly dismissed and the allocation of burdens under sections 94 and 98 of the Employment Rights Act 1996 and section 139 on redundancy. It also considered the scope of strike out under rule 37(1)(a) of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 and the relevant authorities on the high threshold for summary dismissal of claims. The tribunal concluded that the Employment Tribunal had erred in law by failing to engage with the claimant's factual allegations and by assuming that a voluntary redundancy request meant the claimant could not pursue an unfair dismissal claim. Because there was a real dispute of fact central to the issues, the Employment Appeal Tribunal found that the claim could not be summarily dismissed and remitted the matter for a full merits hearing, to be before a different judge.

Appeal allowed. The Employment Tribunal erred in law by striking out the unfair dismissal claim as having no reasonable prospect of success. The tribunal failed to take the claimant's case at its highest, did not properly engage with disputed factual matters relevant to the reason for and fairness of the dismissal, and therefore the claim must be remitted for a full merits hearing (not before the same Employment Judge).

This was an appeal from a judgment of the London South Employment Tribunal (Employment Judge Truscott QC) dated 11 November 2020, in which the Employment Tribunal struck out the claimant's unfair dismissal claim as having no reasonable prospect of success. Permission to appeal was given at an appellant-only preliminary hearing before His Honour Judge Auerbach on 1 September 2021. The present decision is the Employment Appeal Tribunal judgment [2022] EAT 56, handed down on 7 April 2022.