Mr O Oke v Global Banking School Limited Heard: via CVP — 2023

At the preliminary hearing on 17 November 2023, Employment Judge Ayre considered the respondent's application to strike out the claim and the alternative request for a deposit order. The tribunal applied the strike-out authorities it cited, including Rule 37, Mbuisa, Ferguson, Cox, Anyanwu and Kwele-Siakam, and held that there were live disputes of fact on issues including whether the claimant was an employee or worker, whether payslips showing all payments had been provided, whether any delay was caused by late timesheets, whether work was removed from the claimant, and whether he resigned because of alleged breaches of contract or for another reason.

On that basis, the tribunal refused to strike out the claim. It held that the claim could not be said to have no reasonable prospect of success and that the disputed issues could not be resolved without evidence. Although the claimant had not complied with earlier case management orders and the final hearing listed for that day could not proceed, the tribunal found that a fair hearing was still possible and that a lesser response was appropriate. It also noted that the respondent had not complied with the case management orders, and it made further case management orders to prepare the case for trial.

The tribunal then found that the claim, although not struck out, had little reasonable prospect of success for deposit purposes under Rule 39. It identified hurdles on the constructive dismissal allegation, including proving employee status rather than worker status, a fundamental breach of contract, resignation because of that breach rather than because of alternative work, and a link between the alleged breach and the claimant's assertion of a statutory right to itemised pay slips. On the payslip complaint, the tribunal accepted the respondent's position that payslips had been provided except when timesheets were not submitted in time, which the claimant did not dispute. Taking account of the claimant's means, including his net monthly earnings, rent, household position, savings, credit card debt and loan, the tribunal ordered a deposit of £750.