Bazgha Anwar v Boots Management Services Ltd

An Employment Tribunal must exercise particular care before treating an unrepresented claimant as having withdrawn a claim at a private preliminary hearing. A claimant may advance claims for protected-disclosure detriment under section 47B and automatic unfair dismissal under section 103A of the Employment Rights Act 1996; those claims are not legally inconsistent merely because an omission said to be a detriment also contributed to a constructive dismissal.

Although case-management decisions and withdrawals attract a wide margin of appreciation, an error of law arises where the claimant is effectively required to choose between legally compatible claims, without prior warning that strike-out is under consideration, and is then treated as having withdrawn one claim.

The appellant, a litigant in person before the Employment Tribunal, alleged constructive unfair dismissal, protected-disclosure detriment, and automatic unfair dismissal for making protected disclosures. An earlier Employment Judge had recorded the detriment and automatic unfair-dismissal complaints as separate claims.

At a later private preliminary hearing, Employment Judge Drake treated the automatic unfair-dismissal claim as withdrawn and struck it out. The judge considered it inconsistent with the constructive-dismissal and detriment claims. The appellant promptly disputed that she had agreed to abandon it and sought reconsideration, which was refused.

The appeal concerned whether the Employment Judge had erred by treating the claims as incompatible and by treating the appellant as having withdrawn the automatic unfair-dismissal claim.

1. Appeal allowed. The order dismissing the appellant’s automatic unfair-dismissal claim was set aside.

2. It was legally possible for an alleged omission done because of protected disclosures to constitute a detriment and to contribute to a repudiatory breach causing resignation. If the protected disclosure was the principal reason for that constructive dismissal, the same factual course could support an automatic unfair-dismissal claim under section 103A and a detriment claim under section 47B of the Employment Rights Act 1996. The claims were therefore not inherently inconsistent.

3. The Tribunal accepted that the assessment of an alleged withdrawal is intensely fact-specific and that an Employment Judge has a wide case-management margin. On these facts, however, the appellant was unrepresented, had no prior warning that dismissal of the claim was being considered, and had previously been recorded as advancing separate claims. The Employment Judge indicated that she had to choose between claims which could properly coexist, then treated her response as a withdrawal. Even if she had consented, that was unfair treatment and an error of law.

4. The reference to non-compliance with case-management orders was accepted to be irrelevant to the automatic unfair-dismissal claim. The Tribunal also identified procedural concerns about a strike-out under Rule 37(1)(a) without the notice required by Rule 54 and at a private hearing notwithstanding Rule 56 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Those concerns did not form the basis of the decision but were relevant to future case management.

5. The matter was remitted to the Regional Employment Judge for such directions as were appropriate for final determination of this and the remaining claims.

• Employment Appeal Tribunal: Allowed the appeal and set aside the dismissal of the automatic unfair-dismissal claim.

• Employment Tribunal, Employment Judge Drake: At a private preliminary hearing on 10 June 2022, treated the automatic unfair-dismissal claim as withdrawn and struck it out.

• Employment Tribunal, Employment Judge Knowles: At an earlier preliminary hearing in December 2021, recorded the protected-disclosure detriment claim and the section 103A automatic unfair-dismissal claim under the Employment Rights Act 1996 as separate claims.