Bazgha Anwar v Boots Management Services Ltd

The Employment Appeal Tribunal allowed the appellant's appeal against an Employment Judge's decision to dismiss her claim of automatic unfair dismissal (section 103A, Employment Rights Act 1996) at a private preliminary hearing. The EAT held that the Employment Judge erred in treating the claimant as having withdrawn that head of claim without prior warning and while the claimant was a litigant in person, where an earlier judge had recorded that both automatic unfair dismissal and detriment claims (under section 47B) were pleaded. Although tribunals have a wide margin in case management and in assessing withdrawal or strike-out under Rule 37 of the Employment Tribunal rules, on these facts the Judge's conduct fell outside that margin and amounted to a procedural error of law. The order dismissing the automatic unfair dismissal claim was set aside and the matter remitted for further directions.

Background and procedural posture:

• The appellant had worked for the respondent from 5 October 2015 to 4 July 2021 and brought claims including constructive (ordinary) unfair dismissal, allegedly unlawful deductions, breach of the Working Time Regulations 1998, unpaid holiday entitlements and detriment arising from protected disclosures. She also advanced a claim of automatically unfair dismissal under section 103A ERA 1996.
• An earlier Employment Judge (Knowles) recorded at a December 2021 preliminary hearing that the claimant had both an automatic unfair dismissal claim and a separate detriment claim under section 47B; these were recorded as distinct heads.
• At a private preliminary hearing on 10 June 2022 before Employment Judge Drake (the EJ), the EJ recorded that the automatic unfair dismissal claim had been struck out by consent under Rule 37 as having no reasonable prospect of success. The appellant subsequently sought reconsideration and appealed to the EAT. Permission to appeal was granted following preliminary consideration, and the appeal was heard by the EAT.

Nature of the appeal and issues:

• (i) Nature of the appeal: challenge to the dismissal/strike-out of the automatic unfair dismissal claim made at a private preliminary hearing and to the process by which that disposal occurred; the appellant sought reinstatement of that head for further determination.
• (ii) Issues framed: whether claims of detriment (under section 47B) could coherently co-exist with a constructive/automatic unfair dismissal claim under section 103A; whether the EJ lawfully and fairly treated the automatic unfair dismissal claim as withdrawn/struck out at a private preliminary hearing without prior notice and while the claimant was unrepresented; whether the EJ breached procedural requirements (including Rules 37, 54 and 56) and thereby committed an error of law.

Court's reasoning and conclusions:

• The EAT emphasised the wide margin of appreciation afforded to tribunals for case management and for assessing withdrawal/strike-out, citing authority such as Drysdale. Nevertheless, the assessment is fact-sensitive.
• The EAT concluded that, on the facts, the EJ had effectively treated the appellant as having withdrawn the automatic unfair dismissal claim after indicating perceived inconsistency between the pleaded detriment and dismissal claims, without prior warning that the strike-out was being considered and while the appellant was a litigant in person. That procedure was unfair and outside the permissible margin of case management discretion and therefore amounted to a procedural error of law.
• The EAT also identified wider procedural defects: the strike-out was ordered at a private preliminary hearing with no prior notice (engaging Rule 54) and without apparent consideration of the public hearing requirement (Rule 56), and there was unclear reliance on non-applicable case management breaches in the reasons. While these wider errors were not the basis of the grant of permission, they informed the disposal.
• Accordingly, the appeal was allowed, the EJ's order dismissing the automatic unfair dismissal claim was set aside, and the matter was remitted to the Regional Employment Judge for directions to progress the claim and the remainder of the proceedings.

The appeal is allowed. The Employment Judge erred in treating the claimant as having withdrawn or consenting to strike-out of her automatic unfair dismissal claim at a private preliminary hearing without prior warning and while the claimant was unrepresented, and where an earlier judge had recorded both heads of claim; this amounted to a procedural error of law. The order dismissing the automatic unfair dismissal claim is set aside and the matter is remitted to the Regional Employment Judge for directions.

The appellant appealed from a decision of Employment Judge Drake dated 10 June 2022 dismissing the automatic unfair dismissal claim at a private preliminary hearing. An earlier preliminary hearing on 21 December 2021 before Employment Judge Knowles had recorded both automatic unfair dismissal and detriment claims. A Deputy High Court Judge (Mathew Gullick KC) ordered that the appeal be considered at an EAT preliminary hearing and noted arguable errors of law. Permission to appeal was granted by Caspar Glyn KC sitting as a Deputy High Court Judge on 22 November 2023. The appeal was heard in the Employment Appeal Tribunal and allowed on 14 January 2025 (this judgment).