Striking out unfair dismissal claims

An employment tribunal has the power to strike out claims which have no reasonable prospect of success. Employers are able to apply to have claims struck out before the case hearing takes place. A recent case in the Employment Appeal Tribunal (Lockey v East North East Homes Limited) highlighted the difficulties faced by employers when making such applications.

The case involved an employee who had been summarily dismissed for gross misconduct. There were 3 allegations of misconduct against the employee:-

1. he had failed to obey a management instruction;
2. he had sworn at a senior member of staff;
3. and he had behaved unacceptably in front of a client.

The employee made a claim for unfair dismissal as he disputed some of the facts about the incident that had occurred which led to his dismissal, and he did not consider his dismissal to be reasonable. An application to strike-out was made by the employer on the grounds that the claim had no prospects of being successful. The strike-out application was upheld by the employment tribunal because they said the acts were serious acts of insubordination and clearly could amount to gross misconduct. The employee appealed against the strike out and was successful.

The Employment Appeal Tribunal, deciding in the employee’s favour, were concerned that there was dispute over the facts which should have been given an opportunity to be heard by an Employment Judge in a full hearing. They also highlighted that some of the acts by the employee may in fact have warranted a written warning but not summary dismissal. His Honour Judge Richardson said “since it was arguable that an important part of the decision maker’s reason for summary dismissal was flawed, it was essential to look at the decision maker’s decision as a whole. Striking out was not justified”.

This is a disappointing decision given the current Government consultation on reforming the employment tribunals, which is looking at encouraging employment tribunals to use their strike-out powers to better effect (amongst many other proposals). We can only advise that when conducting disciplinary investigations where there may be a potential summary dismissal of an employee, you should ensure investigations are thorough and that the decision to summarily dismiss is reasonable given the misconduct involved. A strike-out application is then much more likely to be successful with no room for doubts.