Miss S Crawshay-Williams of Counsel For the v Respondent — 2024

At a preliminary hearing on 6 February 2024, Employment Judge N J Roper considered the respondent's application to strike out Mr S Woods's unfair dismissal claim or, alternatively, to require a deposit. The claimant had been dismissed for gross misconduct on 2 February 2023 after disciplinary proceedings arising from WhatsApp posts which the judgment described as extremely offensive, including derogatory comments about disabled people and other protected groups.

The claimant accepted that conduct was a potentially fair reason for dismissal and accepted that the procedure adopted by the respondent was fair and reasonable. His case was that the dismissal was unfair because three colleagues who had also made posts received final written warnings rather than dismissal, and because insufficient weight was given to mitigation including the age of the conduct, the lack of social media training at the time, his contrition, and his limited role in the WhatsApp group.

Applying section 98(4) of the Employment Rights Act 1996 and the authorities cited in the reasons, including the Burchell line of cases and the band of reasonable responses approach, the tribunal held that the claim had little reasonable prospect of success but could not say that it had no reasonable prospects. It therefore refused to strike out the claim under Rule 37, but made a deposit order under Rule 39 after considering the claimant's means. The tribunal said the issues about comparable treatment, mitigation, and the reasonableness of dismissal should be determined after full evidence, including cross-examination of the relevant decision-maker.