Claimant v Applearn Ltd and Applearn International Ltd — 2021

At a remote reserved hearing on 18 and 20 October 2021, Employment Judge Shotter considered the claimant's application under Rule 37 to strike out the first respondent's grounds of resistance on the basis that the alleged fair dismissal defence had no reasonable prospect of success. The judge recorded that the claimant had brought an unfair dismissal claim, together with wrongful dismissal and section 1 ERA claims, and that the claims against the second respondent were dismissed on withdrawal by consent. The judgment dealt with the remaining unfair dismissal claim and the strike-out application only.

The tribunal accepted that there were significant disputes of fact about both the reason for dismissal and the process followed. The claimant said his dismissal on 18 December 2020 had been pre-determined, that there had been no genuine performance process, and that he had no appeal. The respondents said he was dismissed for performance reasons after concern during the third quarter of 2020, following board and management meetings, and that he was paid three months' notice. The judge noted the absence of contemporaneous disclosure from the respondents on the performance-management process, but also noted that no oral evidence had been heard and that the tribunal was not conducting a mini-trial.

Applying the Rule 37 threshold and the authorities on strike out, the judge held that this was a fact-sensitive case with a crucial core of disputed facts that could only be resolved after hearing evidence. The judgment referred to section 94 and section 98 ERA 1996, the band of reasonable responses, and the relevance of the ACAS Code in performance dismissal cases. The judge noted documents suggesting the dismissal may have been pre-determined, including a payroll instruction at 10.01 on 18 December 2020, an email at 10.25 referring to a board meeting later that day, and the dismissal letter and board minutes from the afternoon, but concluded that those matters did not justify striking out the respondent's defence at a preliminary stage.

The claimant's application was therefore dismissed. The judgment does not decide whether the dismissal was fair or unfair on the merits; it leaves that question for the liability hearing, including the issues of procedural fairness, substantive fairness, and the effect of the absence of an appeal.