Representing himself For the v Mr G Hayes, solicitor PRELIMINARY HEARING — 2020

At a preliminary hearing at London Central on 29 July 2021, Employment Judge Lewis considered the claimant's application to strike out the respondent's response on the basis that it had no reasonable prospect of success. The claimant, Mr T Dalton, had brought a constructive unfair dismissal claim. He relied on the respondent's own grievance appeal letter dated 18 November 2020, which upheld the appeal about the disciplinary and grievance process and said the informal process should have lasted longer and that the managers involved had not been appropriately briefed, leading to a flawed process. The same letter also said the disciplinary trigger was appropriate because of ongoing issues with the claimant's timesheets and prior warnings.

The tribunal refused the strike-out application. Judge Lewis said that constructive unfair dismissal involved more than a pure unfair dismissal claim and would require findings on whether there had been a fundamental breach of contract, whether the claimant resigned at least in part because of that breach, and whether he resigned before the grievance appeal had been decided. The judge accepted that the claimant had strong arguments, but said the respondent could not be said to have no reasonable prospect of success.

The judgment also recorded that the grievance appeal letter did not necessarily accept every procedural flaw advanced by the claimant, and that further evidence would be needed on matters such as what material had been sent before the disciplinary meeting and how clear the allegations already were. The judge suggested the respondent should consider filing an amended response so that facts it had already accepted internally were not unnecessarily disputed, but the merits of the underlying constructive dismissal claim were not decided in this judgment.