Quorous Slater v Allen Ford UK Ltd

On an application to strike out for no reasonable prospect of success, an employment tribunal must ordinarily assess the claimant’s case at its highest. It should not resolve central factual disputes without evidence unless the claim is exceptionally unsustainable.

This requires engagement with the case actually advanced, including disputed facts capable of supporting an inference as to the real reason for dismissal or discriminatory treatment. A tribunal must also identify the legal character and asserted basis of a claim before striking it out. A potentially difficult claim is not thereby one with no reasonable prospect of success.

The claimant was summarily dismissed for alleged dishonest use of a police fuel card. She brought, among other complaints, claims of automatic unfair dismissal for protected disclosures, direct sex discrimination by dismissal, and breach of contract concerning required additional evening work.

The Employment Tribunal struck out all her claims. At a rule 3(10) hearing, permission was limited to appeals concerning those three claims. The central issue was whether the Employment Tribunal had lawfully concluded, at a preliminary hearing without evidence, that each claim had no reasonable prospect of success.

1. Appeal allowed. The decisions striking out all three complaints were quashed.
2. The protected-disclosure dismissal claim could not properly be struck out. The tribunal had materially misstated the dates of the alleged disclosures and had failed to assess the claimant’s disputed account at its highest. Her account of the disciplinary process could, if established, support an inference that her manager had acted adversely because of disclosures and had misled, or colluded with, the dismissing manager. Those matters required factual findings at trial.
3. The direct sex-discrimination claim was also wrongly struck out. The tribunal considered only one of the three identified male comparators and did not engage with the claimant’s factual account concerning any comparator. Even if the claim was ambitious, the tribunal had to consider whether those accounts, if proved, could support an inference that sex materially influenced the dismissal.
4. The tribunal had wrongly treated the “forced overtime” claim as an unlawful-deduction-from-wages claim and as non-compliant with directions concerning such claims. It was advanced as a breach-of-contract claim based on an implied right to payment for additional required hours. Its precise legal basis required closer examination before its prospects could properly be assessed.
5. The EAT substituted a refusal to strike out the protected-disclosure claim. It remitted the sex-discrimination and breach-of-contract claims to a different employment judge for consideration of any renewed strike-out application and of proposed deposit-order applications.

• Employment Appeal Tribunal: allowed the appeal in [2024] EAT 139; quashed the strike-outs, substituted a refusal to strike out the protected-disclosure claim, and remitted the other two claims to a different tribunal judge.
• Employment Tribunal: EJ Housego struck out all complaints at a preliminary hearing. Permission to appeal was later confined to three complaints.