Ms K Makai, Partner v Respondent — 2020

The claimant presented a claim on 12 March 2018 and had ticked unfair dismissal. The respondent said the dismissal was for some other substantial reason, namely a breakdown in the relationship of trust and confidence. A preliminary hearing had identified the unfair dismissal issues under s.98(1), s.98(2) and s.98(4) Employment Rights Act 1996, including whether the respondent acted within the band of reasonable responses.

By the time of the strike-out hearing, the tribunal had the exchanged witness statements and a large bundle. The judge summarised the background, including the claimant's employment from 2007, the hard-hat incidents in April and May 2017, the later CCTV/horseplay incident on 31 May 2017, the claimant's grievance about Mr Brooks, and the subsequent grievance and appeal process. The tribunal recorded that the claimant had not returned to work after June 2017, had been signed off with work-related stress, and was eventually dismissed after meetings with Mr Newell and Mr Maddox.

The tribunal concluded that the claimant's pleaded and witness evidence did not mount any criticism of the grievance or dismissal process itself. It found no complaint of unreasonable delay, inadequate investigation, failure to seek evidence, bias, predetermined outcomes, or other impropriety. On that basis, the judge said there was no evidence to support even an ordinary unfair dismissal claim, let alone dismissal for health and safety reasons or for asserting a statutory right.

The tribunal considered, but rejected, a very narrow possibility that the claimant's grievance might amount to a public interest disclosure. The judge noted that no whistleblowing claim had been indicated in the ET1, the claimant had been represented and advised, and re-labelling the case at that late stage would require amendment and postponement. The tribunal also noted that this was not a constructive dismissal case because the claimant had not resigned. It therefore struck out the claim under Rule 37 as having no reasonable prospect of success.