Ryan v R Robertson & Son Ltd — 2021

The claimant was a bus driver employed on a fixed-term contract from 17 August 2020 to 17 August 2025. His employment ended on 30 January 2021 after a dispute at a grievance meeting on 29 January 2021 involving Lee Cox. He brought claims described as automatic unfair dismissal, race discrimination, breach of contract, unlawful deduction from wages, and detriment. The respondent applied to strike out the claims under Rule 37(a), and the tribunal applied the high strike-out threshold described in Shestak, considering the pleaded case on the basis that the claimant could prove the facts alleged.

On automatic unfair dismissal, the tribunal held that section 12 of the Employment Relations Act 1999 protects a worker from dismissal because he accompanied another worker at a grievance or disciplinary hearing, but not from dismissal because of subsequent conduct or absence arising out of what happened at the hearing. It found that the claimant's case depended on the consequences of the meeting, rather than on dismissal because he acted as a companion or witness. The dismissal letter referred to inappropriate conduct and unauthorised absence, not to his attendance as a companion, so the tribunal held that claim had no reasonable prospect of success.

On race discrimination and harassment, the tribunal accepted that English national origin can fall within the race provisions of the Equality Act 2010. It nevertheless held that the alleged remark about calming down was, at most, a reference to a Liverpool or Scouse stereotype. On that basis, it concluded that the comment might have been unprofessional or uncalled for, but it was not treatment on the ground of the claimant's English national origin. The tribunal therefore struck out the section 13 and section 27 complaints. It also rejected the separate detriment complaint, holding that the loss complained of flowed from dismissal and that section 44(4) of the ERA 1996 excludes complaints where the detriment amounts to dismissal.

The tribunal further held that late payment of one week's notice pay did not amount to an unlawful deduction from wages because payment in lieu of notice is treated as a debt rather than wages for Part 2 of the ERA 1996. On the contractual claims, it found that the contract permitted one week's notice and payment in lieu, and that the handbook allowed dismissal without disciplinary procedure for employees with less than 24 months' service. For those reasons, the breach of contract and wrongful dismissal complaints were also held to have no reasonable prospect of success, and all claims were struck out.