Donna Edinboro v Jamma Umoja (Residential Services) Ltd

A tribunal considering strike-out must apply Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It must decide whether a pleaded claim has no reasonable prospect of success, rather than determine disputed facts or the substantive merits. A party must also have a reasonable opportunity to address a proposed strike-out.

In a protected-disclosure case under section 43B of the Employment Rights Act 1996, the inquiry includes whether the worker reasonably believed that disclosed information tended to show a relevant failure. It is not enough to decide only whether the information objectively proved such a failure.

The claimant, a litigant in person, appealed an Employment Tribunal decision dismissing her claims. The Tribunal had been listed to consider strike-out of her unfair-dismissal claim and to identify any other claims. It nevertheless dismissed claims for breach of contract and protected-disclosure detriment.

The claimant alleged contractual failures to follow grievance and disciplinary procedures. She also alleged that information she gave about a colleague’s account of an incident was a protected disclosure. The central issues were whether she had fair notice that those claims might be struck out, whether the Tribunal had applied Rule 37, and whether it had used the correct reasonable-belief inquiry under section 43B of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Judge made material errors of law. The decision dismissing the claims was set aside and the respondent’s strike-out application was remitted for reconsideration by a different Employment Judge. No findings were preserved.

2. The hearing notice did not identify strike-out of the breach-of-contract claims as an issue. Although the claimant had referred to those claims in later correspondence, she could not reasonably have anticipated that they would be struck out. Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required a reasonable opportunity to make representations. The procedural error was material because the claims were not bound to fail.

3. The Employment Judge also failed to apply the Rule 37 test. Rather than asking whether the pleaded claims had no reasonable prospect of success, she made substantive findings on contractual status and on the alleged disclosure. That deprived the claimant of a properly prepared substantive hearing at which factual findings could be made. The Tribunal must first identify the claims actually pleaded, distinguish any potential amendment, give proper notice of strike-out, and assess the pleaded claims at their highest.

4. For section 43B of the Employment Rights Act 1996, the relevant question was not solely whether the information objectively tended to show a likely failure to comply with a legal obligation. The Employment Judge had to consider whether the claimant reasonably believed that information about a colleague’s alleged intentional falsehood in a regulated professional setting tended to show such a likely failure. That inquiry had not been undertaken.

5. It was at least arguable that the material supported contractual rights to grievance and disciplinary hearings, and that any contractual claim was within the Tribunal’s jurisdiction under Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The EAT made no findings on those matters. Permission to appeal to the Court of Appeal on the materiality of the contractual-claim error was refused.

• Employment Appeal Tribunal: Appeal allowed. The decision of Employment Judge Wright, sent on 1 March 2022, was set aside and the strike-out application was remitted afresh: [2024] EAT 61.
• Employment Tribunal: Employment Judge Wright dismissed the claimant’s claims in their entirety.