Before striking out a claim, tribunals need to exercise considerable caution. In Simmonds-Plummer v LB of Hammersmith & Fulham, the EAT held that not only had the tribunal misunderstood the claim, it had not taken on board the fact that the complainant was a litigant in person who claimed to have evidence that she had been discriminated against.
Ms Simmonds-Plummer was suspended from her job on 6 December 2018, pending the outcome of a disciplinary investigation. A hearing was arranged for 27 December but had to be postponed until 10am on 4 March 2019. At 9.21 am that day, she sent an email attaching a letter of resignation. However, her message was caught in the council’s email quarantining service and was not released until 1.21am the following day. At 10.57am on 5 March, Ms Simmonds-Plummer sent a further email stating that she was giving notice with immediate effect from her resignation message the previous day.
However, as the council had not received her email by the time the disciplinary hearing was due to start on 4 March, it went ahead without her. She was told by letter on 3 April that she had been dismissed for gross misconduct. She replied on 7 April that she had resigned on 4 March and that the decision to go ahead with the disciplinary hearing in her absence amounted to post-employment victimisation on the grounds of race and sex.
Ms Simmonds-Plummer lodged tribunal claims on 23 August for unfair constructive dismissal and discrimination as a result of post-termination acts of victimisation and/or harassment, among other things. The council argued that the claims should be struck out for being out of time.
With regard to the complaint of constructive dismissal, the tribunal noted that as Ms Simmonds-Plummer had submitted her resignation on 4 March, the three-month time limit had expired on 3 June. As she had been assisted by an experienced adviser throughout the process, it concluded that it had been reasonably practicable for her to have lodged her claim on time and therefore struck it out.
As for the discrimination claims, the tribunal found that to succeed, she would need to show that her employment had come to an end when the council summarily dismissed her. Apart from the fact that that argument was completely contrary to her own complaint of constructive dismissal, the tribunal held that she had no reasonable prospects of establishing that she had been summarily dismissed. Nor was there any real prospect of a tribunal finding that the acts complained of were because of her gender or race. It, therefore, struck out those complaints as well.
Allowing the appeal, the EAT held that the employment judge had misunderstood Ms Simmonds-Plummer’s discrimination claims, believing that they related to an actual dismissal by the employer which constituted the victimisation or harassment, rather than to post-termination discrimination.
The EAT then had to decide whether “the relatively draconian step of striking out the claim at this juncture [was] plainly and unarguably the correct thing to do” as the council had argued. Noting that that was a high threshold to meet, the EAT concluded that, although a discrimination claim can be struck out, tribunals should exercise “considerable caution”.
In this case, it had to be remembered that Ms Simmonds-Plummer was not legally represented and that she claimed to have evidence showing that the council had not taken gross misconduct proceedings to a conclusion compared to other employees in relation to both the sex and race claims.
As strike out was not “plainly and arguably” the right course of action, the EAT remitted the matter back to the tribunal for reconsideration.