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Employment Tribunal Claims: Is it worth making a Strike Out Application to the Employment Tribunal?

I usually advise client’s that there is little point in making a strike out application, which is an application to have all, or part of a claim removed from the Tribunal. The reason for this is that the Employment Tribunal are often reluctant to strike out claims without hearing all the evidence.

However, in the recent case of White v HC-One Oval Limited [2022] EAT 56 , the Employment Tribunal did strike out a claim for unfair dismissal, where it decided that the employee’s claim had no reasonable prospect of success.

In this case the Employer, HC-One Oval Limited, announced in September 2018 that it would be reducing the number of employees who undertook administration and reception duties. The employee, Ms White, was provisionally selected for redundancy, and then requested voluntary redundancy. The Employer granted her request for voluntary redundancy and Ms White was dismissed.

However, after Ms White’s employment terminated, she submitted a claim to the Employment Tribunal for unfair dismissal on the basis that:

  • In July 2018 she had raised a formal grievance.
  • During the redundancy process another administrative role became available but the Employer failed to offer her the alternative position.
  • The receptionist who started working for the Employer just before the redundancy process was commenced was not made redundant, whilst the two part time receptionists with child-care responsibilities were.

The Employer argued that the Ms White had been fairly dismissed, as she had requested voluntary redundancy, and therefore, had been dismissed at her own request. In the circumstances, the Employer argued the claim should be struck out.

The Employment Tribunal agreed with the Employer and struck out the claim. The Employment Tribunal confirmed that as Ms White had requested redundancy, the Employer would be able to establish the reason for and the reasonableness of the dismissal. Therefore, there was no claim for unfair dismissal.

On the face of it, this seems to be a logical decision.

However, the Ms White appealed, and the Employment Appeal Tribunal decided that the Employment Tribunal had been wrong to strike out the claim.

The Employment Appeal Tribunal confirmed that as Ms White was alleging the redundancy had been engineered to dismiss the two part time employees, the Employment Tribunal should have considered the fairness of the process, even if it was satisfied that the reason for the dismissal was redundancy.

As the Employment Tribunal had failed to consider whether the Employer had followed a fair process, the claim should not have been struck out as it was not possible to determine if it had a reasonable prospect of success.

In my view this case highlights the problem with strike out applications, and it is why I often advise clients to send a cost warning letter to seek to get the employee to withdraw the claim, where a claim is being pursued vexatiously or without merit, rather than make a strike out application.

If you are considering making a strike out application or have had an application made against you and wish to discuss matters, please contact us on 01983 897003.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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