Labour & European Law Review Weekly Issue 399 10 December 2014
Although tribunal judges can strike out claims without hearing any evidence, the Employment Appeal Tribunal (EAT) held in Romanowska v Aspirations Care Ltd that where there is a dispute about the facts, it is unlikely that justice can be done without hearing the evidence that could resolve any conflicts of fact.
Ms Romanowska was a care worker on the permanent staff of a home for adults many of whom were severely autistic and who could become very distressed if changes were made to their routine.
One evening, she found a resident sitting at the top of the stairs, which he often did until it was time for him to go to his bedroom. She was concerned that agency staff were mishandling the situation, so she decided to pull him physically to his room herself.
She was then suspended for “dragging” him and invited to a disciplinary hearing at which she made a number of complaints about the risks involved in using agency staff who had minimal training and were unfamiliar with the residents. After she was dismissed but pending her appeal (which was unsuccessful), she complained to the Care Quality Commission about her concerns.
She claimed that she had been unfairly dismissed because she had made “protected disclosures” (blown the whistle).
At a pre-hearing review, the judge struck out the claim without hearing any evidence (she just relied on the minutes from the disciplinary), holding that Ms Romanowska could not show a connection between her disclosure and the dismissal, given that the reason for her dismissal was her conduct. However, the judge also held that Ms Romanowska might be able to establish that she had made protected disclosures immediately prior to her dismissal.
Ms Romanowska appealed on the basis that, as there was a central dispute about the reason for her dismissal, the judge could not properly conclude what the actual facts were without hearing evidence and evaluating it.
The EAT accepted that judges often strike out claims without hearing evidence. “To hear evidence might defeat the purpose of using the power to save the time, expense and resources of the parties and that of the Tribunal in dealing with a claim which, on any reasonable view, will not succeed”.
Sometimes it is obvious that a claim simply cannot succeed on the basis on which it has been put forward but where there is a dispute about the facts, then “unless there are good reasons, indeed powerful ones, for supposing that the Claimant’s view of the facts is simply unsustainable, it is difficult to see how justice can be done between the parties without hearing the evidence in order to resolve the conflict of fact which has arisen”.
In this case, the EAT held that there was a “real dispute of fact” about the reason for Ms Romanowska’s dismissal. The tribunal judge could not possibly have known what was in the mind of the employer until she had heard and evaluated all the evidence. “Only then would [she] know what the principal reason for dismissal was”.
The judge had therefore made an error of law and the case was remitted to a fresh employment tribunal to be heard by a different judge.