Evans v Brent London Borough Council

An Employment Tribunal cannot strike out an unfair-dismissal claim merely because no financial remedy can be awarded. A finding of unfair dismissal, including one based solely on procedural unfairness, may have value in itself.

Under Rule 37, the Tribunal retains a discretion to prevent frivolous, vexatious or abusive proceedings. However, where there is a reasonable prospect of establishing procedural unfairness, the absence of compensation does not by itself show that the claim lacks value or that the interests of justice require strike-out.

The claimant, a deputy head teacher, was dismissed for alleged gross misconduct. Related High Court proceedings made findings that effectively determined the substantive allegations against him and meant that he could not obtain a basic or compensatory award.

The Employment Tribunal nevertheless identified a triable issue of procedural fairness arising from the respondent's refusal to adjourn the disciplinary hearing. It struck out the whole unfair-dismissal claim under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, relying in part on Nicolson Highlandwear v Nicolson and the absence of a declaratory remedy. The claimant appealed.

1. Appeal allowed in part. The Employment Tribunal erred in striking out the entire unfair-dismissal claim. It had found a reasonable prospect that the refusal to adjourn the disciplinary hearing rendered the dismissal procedurally unfair.

2. A finding of unfair dismissal may have value even where no compensation, reinstatement or re-engagement can result. The absence of a formal declaratory remedy under the Employment Rights Act 1996 did not make such a finding valueless. Telephone Information Services Ltd v Wilkinson and Gibb v Maidstone & Tunbridge Wells NHS Trust supported that conclusion.

3. The Tribunal had wrongly relied on Nicolson Highlandwear v Nicolson. The EAT respectfully disagreed with its treatment of an unfair-dismissal claim as incapable of being pursued for the value of a finding alone. The earlier decision had not considered Telephone Information Services and gave insufficient weight to the determination an Employment Tribunal makes under section 98.

4. A possible finding of unfair dismissal is not an automatic answer to strike-out. Rule 37 leaves the Tribunal able to prevent proceedings which are frivolous, vexatious or an abuse of process, consistently with Ashmore v British Coal Corporation. But it was not an abuse of process to pursue the identified procedural issue. The High Court had not determined procedural fairness, and the remaining issue would not require substantial further resources.

5. The unappealed strike-out of the substantive fairness allegations remained undisturbed. The strike-out was set aside only as to the allegation that the respondent acted procedurally unfairly by refusing to adjourn the disciplinary hearing. The proposed deposit orders consequently had no further effect.

• Employment Appeal Tribunal: Allowed the appeal in part and restored the procedural-unfairness element of the unfair-dismissal claim.
• Employment Tribunal, Watford: Struck out the whole unfair-dismissal claim under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, while finding a reasonable prospect of procedural unfairness concerning the refusal to adjourn the disciplinary hearing.