Miss A Nezianya v Foreign, Commonwealth and Development Office (FCDO) — 2024

This was a preliminary hearing before Employment Judge E Burns, sitting alone, on the respondent's application to strike out Miss A Nezianya's constructive unfair dismissal complaint under rule 37(1)(a), or alternatively to order a deposit under rule 39. No evidence was heard. The tribunal therefore made no findings of fact on the underlying merits, and its decision was confined to whether the claim had no reasonable prospects of success or only little reasonable prospect of success.

The claimant's case was that she resigned in response to the respondent's alleged mismanagement of her apprenticeship and lack of progress in professional development. The respondent's application turned on a narrow legal point: it argued that because the claimant was a Crown employee, and later moved to a role in the Department for Business and Trade with continuity of service, she had not been dismissed for the purposes of the Employment Rights Act 1996. The judge rejected that argument. She held that section 191 ERA 1996 is a construction provision intended to adapt the Act for Crown employment, not to remove Crown employees' ability to bring unfair dismissal claims.

The judge also relied on the written agreement between the parties, which stated that it was an apprenticeship agreement and that the claimant would be treated as an employee of the Crown. She held that section A5 of the Apprenticeship, Skills, Children and Learning Act 2009 meant the agreement was to be treated as a contract of service, so the ordinary Employment Rights Act 1996 provisions could apply without needing to rely on section 191. In the alternative, the judge said that even if section 191(4)(c) applied, it did not support the respondent's argument that a Crown employee moving between government departments could never be dismissed. The respondent's strike-out and deposit application was therefore refused.