The Employment Appeal Tribunal (EAT) has held in White v HC-One Oval Ltd that, when considering a claim of unfair dismissal, tribunals must hear the relevant evidence and make findings of fact. If it transpires that the central facts are in dispute, they should not strike out the claim.
Ms White started working as a part-time receptionist in June 2013 at a care home. From December 2017 onwards, she started doing some administrative work on behalf of the deputy manager who was on long-term sick leave. When her employer failed to pay her for these additional duties, she lodged a grievance which was rejected.
In June/July 2018, the company hired a new full-time receptionist shortly before it announced a restructure of receptionists and administrative staff. Ms White was provisionally identified as being at risk of redundancy. The deputy manager then took voluntary redundancy, leaving her admin role vacant. However, rather than offering it to Ms White, the company offered the combined full-time role of administrator/receptionist to the recently appointed receptionist.
Ms White lodged tribunal proceedings for unfair dismissal, arguing that the company had clearly hired the new receptionist with the intention of replacing her as a part-time worker, rendering the redundancy process a sham. The company argued that it had, in fact, offered the administrator/receptionist role on a job share basis to Ms White but she had turned down the offer saying that she wanted to be made redundant.
The tribunal held that her claim could not succeed as her employer could establish a fair reason for the dismissal. In other words, redundancy. The employer had also acted reasonably 'in treating it as a sufficient reason' for dismissing her, given that Ms White had volunteered to be made redundant.
Although she had argued that her employer had broken the term of mutual trust and confidence, she did not claim constructive dismissal, and did not resign in response to an alleged breach. As her case was therefore fundamentally flawed and had no prospect of success, it should be struck out.
Ms White appealed, arguing that the tribunal was wrong in law to assume that voluntary redundancy automatically constitutes a fair dismissal, and/or that by volunteering for redundancy, an employee loses the right to claim unfair dismissal.
Upholding the appeal, the EAT criticised the tribunal for not hearing any evidence or making any findings about the history leading up to the dispute. Instead, it just considered the different events as part of a background that might have provided the basis for a claim of constructive dismissal (had Ms White resigned), as opposed to whether they were relevant to her claim of unfair dismissal.
If it had accepted her account of the history to the dispute, it might have taken other issues into consideration, in addition to her request for redundancy. For instance, that it was made against the backdrop of a grievance about not being offered the administrator role; and that an additional employee had recently been taken on with the specific intention of replacing the existing part-time receptionists.
Had those findings been made, it was difficult to see why Ms White’s complaint of unfair dismissal would be viewed as having no reasonable prospect of success. Even if the tribunal was ultimately satisfied that the actual reason for her dismissal was redundancy, it still needed to engage with her broader case about the fairness of the process that had led to that dismissal.
As the case-law made clear that a claim should not be struck out when the central facts are in dispute, the EAT remitted the case for a full merits hearing before a different judge.
This case highlights that the threshold for a strike out of a claim is a high one for an employer to overcome. The EAT found that the tribunal failed to properly engage with Ms White’s case, which it was required to do when considering an application for strike out. Had it done so, it could not have concluded that there was no reasonable prospect of success because there was a clear factual dispute between the parties which was not suitable for a decision without a full trial. The EAT concluded that the tribunal erred as a result.