In Dr Richard Evans v The London Borough of Brent: UKEAT/0290/19/RN, the Employment Appeal Tribunal held that the Employment Tribunal had erred in striking out an Unfair Dismissal claim based on the Claimant having no prospect of receiving any financial award despite there being a reasonable prospect of success of a finding that the Claimant’s dismissal had been procedurally unfair.
The Claimant, a former deputy head teacher at a local authority school, was suspended from work following allegations of financial misconduct and mismanagement. After a formal investigation, he was provided with an 800-page document to consider prior to a disciplinary hearing set for 19 days later. The Claimant asked for more time to consider the document, but his employer denied him that opportunity. Following a disciplinary hearing held in the Claimant’s absence, he was dismissed. The Claimant submitted a claim for Unfair Dismissal on the grounds of procedural unfairness.
The Employment Tribunal claim was stayed pending High Court proceedings brought by the employer based on substantially the same facts as the Employment Tribunal claim against, inter alia, the Claimant. The judgment in the High Court proceedings was to the effect that the Claimant had procured illicit bonus payments to himself.
Subsequently, the Employment Tribunal considered whether the claim should be struck out on the ground that it had no reasonable prospect of success, pursuant to rule 37 of the Employment Tribunals Rules of Procedure 2013. The Employment Tribunal found that, although an issue of procedural unfairness arose in relation to the employer’s refusal to postpone the disciplinary hearing, there was – following the High Court proceedings – no prospect of the Claimant receiving any compensation, and a declaratory remedy alone was not appropriate in an Unfair Dismissal claim. The Employment Tribunal struck out the claim. The Claimant appealed to the Employment Appeal Tribunal.
Allowing the appeal, the Employment Appeal Tribunal held that a finding of Unfair Dismissal had value in itself, for as the Court of Appeal (Laws LJ) had held in Gibb v Maidstone and Tunbridge Wells NHS Trust [2010] EWCA Civ 678: “[a]n unfair dismissal claim is not in all respects to be equated with a common law action which a defendant can simply choose to settle by a monetary offer”. This was different from the point in Polkey v AE Dayton Services Ltd [1987] UKHL 8, which concerned whether adherence to a fair procedure would nonetheless have resulted in the claimant being dismissed. Having concluded that a finding of Unfair Dismissal was a reasonable possibility, the Employment Tribunal had been wrong to strike out the claim in its entirety for lack of reasonable prospects of success, simply because no compensation was likely to be awarded.
The essential point of the case is that a lack of financial prospects in an Unfair Dismissal claim does not compel the conclusion that there are no reasonable prospects of success for the purposes of a strike out application.
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