Ms Abiola John v B. Braun Medical Ltd — 2023

At a preliminary hearing on 6 January 2023, Employment Judge R S Drake sitting alone struck out the claimant's claims against B. Braun Medical Ltd under Rule 37(1)(a) of the Employment Tribunals Rules because they had no reasonable prospect of success. The claimant had at points pleaded an alleged automatic unfair dismissal under section 100 ERA 1996, but by the hearing the case was being pursued as constructive unfair dismissal together with breach of contract and non-payment of wages.

The tribunal found that the claimant had been offered re-engagement on 19 May 2022, had replied the same day accepting the offer, and had signed a new contract that preserved continuity of employment from 29 October 2017 but placed her in a lower-paid Transcare Nurse role. On that basis, the judge concluded that any earlier complaint about dismissal or breach was overtaken by the accepted re-engagement. The judge also said the section 100 point was already defective on the pleadings because designation to carry out the relevant health and safety activities had not been pleaded.

Applying the Rule 37 threshold and the 'realistic as opposed to fanciful' test from Swain v Hillman, and referring to Whitbread v Mills and Taylor v OCS on considering the whole procedure, the tribunal held there was no conflict of evidence requiring a full hearing. All claims were dismissed following strike out, and no remedy was awarded.