Mr D Panesar, Counsel. For the v Mr A Moore, Solicitor — 2019

At the preliminary hearing on 31 July 2019, the claimant’s case included a contention that she had been constructively unfairly dismissed within s.95(1)(c) of the Employment Rights Act 1996. The claimant applied to strike out part of the respondent’s response, arguing that the respondent’s proposed justification was circular because it relied on a breakdown of trust and confidence arising from the same conduct said to amount to the alleged fundamental breach.

Employment Judge Ord accepted that the respondent’s argument was difficult, both conceptually and on the facts, because the two individuals identified in the further and better particulars were closely involved in the matters complained of. However, the tribunal was not satisfied that the argument had no reasonable prospects of success, and therefore refused to strike out that part of the response without hearing evidence.

The tribunal did find that the allegation or argument in paragraphs 1.6 and 1.7 of the respondent’s further and better particulars dated 22 May 2019 had little reasonable prospect of success. It therefore ordered the respondent to pay a £1,000 deposit under rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 as a condition of continuing to advance that line of argument, payable by 28 August 2019. No order was made on the strike-out application.