R Gall Mrs E McBride v Represented by: Ms A Bennie – Advocate Fraser Pharmacies — 2017

At a preliminary hearing on 24 April 2017, the respondents applied under Rule 37 to strike out the claim on the basis that it had no reasonable prospect of success. They said the claimant had resigned with immediate effect in September 2016 and had not withdrawn that resignation, so there had been no dismissal and no entitlement to notice pay or wages after resignation. The claimant said she had been dismissed in December 2016 or, alternatively, that she had resigned because of a fundamental breach of contract and therefore had a constructive dismissal claim. The tribunal referred to Wallace v Ladbrokes Betting and Gaming Limited, Geys v Société Generale, Hasan v Tesco Stores Ltd and Tayside Public Transport Co Ltd v Reilly.

The tribunal said strike out is a draconian remedy to be used only in exceptional circumstances and that the case turned on disputed facts. It identified as key issues whether the 30 September 2016 email amounted to a fundamental breach, whether the claimant's resignation had been accepted, and whether the P45 and later communications meant employment continued until December 2016. It noted that the parties had exchanged communications and that grievance and grievance appeal meetings had taken place.

Because evidence was required on those factual questions, the tribunal could not conclude that there was no reasonable prospect of success on the unfair dismissal, wrongful dismissal, wages unpaid or constructive dismissal claims. It therefore refused the strike-out application and directed that the case be set down for a full hearing.