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Tribunal Procedure: Strike Out

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Was it appropriate to strike out a claim of constructive dismissal where the Claimant had not fully pleaded the reasons for the alleged breaches of contract?

No, held the EAT in Mbuisa v Cygnet Healthcare Limited.

The Claimant alleged that he had raised health and safety concerns which his employer failed to act upon. This included assaults, threats, and the requirement to do lifting work. Instead, his employer denied the breaches and failed to take steps to prevent future incidents. He then resigned in response.

The Claimant (acting in person) brought a claim of automatically unfair dismissal relating to health and safety reasons under s100 of the Employment Rights Act 1996. The tribunal struck out the Claimant's claim on the basis that he had not asserted that the reasons for the breaches of contract (the assaults, threats and lifting work) fell within s100. The Claimant appealed.

The EAT allowed the appeal. The Claimant's claim was actually that the employer had, as a consequence of his raising those concerns, allowed circumstances to exist where the breaches could happen. The EAT went on to say that striking out a claim was a draconian step that should only be taken in exceptional cases. It is wrong to make an order where there is a dispute on the facts to be determined at trial. Particular caution is needed if the claim is badly pleaded, for example by a litigant in person or a complainant whose first language is not English. The right course would be to ensure it was properly pleaded, and if it had little prospect of success, make a deposit order.

Thanks to James English of Ward Hadaway for preparing this case summary.