Donna Edinboro v Jamma Umoja (Residential Services) Ltd

The Employment Appeal Tribunal allowed the appellant's appeal, set aside the Employment Judge's decision and remitted the matter for reconsideration by a different Employment Judge. The tribunal found material procedural errors: the Employment Judge failed to apply Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 when considering strike-out; failed to give the unrepresented appellant reasonable notice that breach of contract and detriment claims might be struck out; and took matters beyond a Rule 37 inquiry by making substantive findings of fact. The tribunal also found a legal error in the analysis of protected disclosures under section 43B of the Employment Rights Act 1996 by assessing whether the information tended to show a failure rather than whether the claimant reasonably believed it so tended.

Background and procedural posture:

• The appellant presented claims including automatically unfair dismissal, detriment for making protected disclosures and breach of contract. The Employment Judge dismissed all claims in a decision sent 1 March 2022. The appellant obtained permission to appeal to the Employment Appeal Tribunal by Judge Barry Clarke on 3 May 2023.

Nature of the application:

• The appeal challenged the Employment Judge's dismissal of detriment claims under section 47B ERA, findings on protected disclosures under section 43B ERA, and the strike-out of alleged breach of contract claims. The appellant sought reinstatement of the claims or, in effect, a remittal for reconsideration because of procedural and legal errors in the strike-out process and substantive analysis.

Issues framed:

• Whether the Employment Judge applied the correct test under Rule 37 ET Rules when considering strike-out and gave the appellant a reasonable opportunity to make representations, particularly as a litigant in person.
• Whether the Employment Judge wrongly made substantive factual findings rather than assessing whether claims had reasonable prospects of success.
• Whether the Employment Judge misapplied the statutory test in section 43B ERA by asking whether the disclosed information tended to show a failure rather than whether the claimant reasonably believed it tended to show a failure.
• Whether any breach of contract claims were bound to fail such that any procedural error was immaterial.

Court's reasoning and disposition:

• The Employment Appeal Tribunal concluded the Employment Judge did not refer to or apply Rule 37 and erred by making substantive findings rather than taking the claimant's case at its highest and addressing reasonable prospects of success. The notice of the preliminary hearing did not sufficiently warn the litigant in person that breach of contract claims might be struck out; the appellant therefore lacked a reasonable opportunity to respond.
• The Employment Judge also erred in the protected disclosure analysis by assessing whether the information itself tended to show a failure instead of analysing whether the claimant reasonably believed it did so under section 43B ERA.
• On the question of breach of contract, the EAT did not make findings but held that the claims were not bound to fail on the evidence then before the Employment Judge (for example, indications in the handbook of grievance and disciplinary procedures), and that any strike-out required correct procedure and notice.
• The EAT set aside the Employment Judge's decision and remitted the strike-out application for fresh consideration by a different Employment Judge. Permission to appeal to the Court of Appeal on a narrow point was refused.

The appeal is allowed. The Employment Judge's decision is set aside because she failed to apply Rule 37, deprived the unrepresented appellant of reasonable notice and opportunity in respect of potential strike-out of claims, made substantive findings rather than assessing reasonable prospects of success, and misapplied section 43B ERA by assessing whether the information tended to show a failure rather than whether the claimant reasonably believed it did. The matter is remitted for fresh consideration by a different Employment Judge with no preserved findings.

Appeal from the decision of Employment Judge Wright (judgment sent 1 March 2022). Permission to appeal to the Employment Appeal Tribunal granted by Judge Barry Clarke (3 May 2023). This judgment of the Employment Appeal Tribunal: [2024] EAT 61 (28 March 2024).