Quorous Slater v Allen Ford UK Ltd
[2024] EAT 139
Donna Edinboro v Jamma Umoja (Residential Services) Ltd
28 March 2024
[2024] EAT 61
Employment Appeal Tribunal
An employee lost her case at the Employment Tribunal because the judge made mistakes about the rules and didn't give her enough chance to respond. A higher court said this wasn't fair, so the case will be heard again by a different judge.
Key Facts
- •Donna Edinboro (Appellant) appealed against the Employment Judge Wright's (EJ) decision dismissing her claims against Jamra Umoja (Residential Services) Ltd (Respondent).
- •The Appellant claimed unfair dismissal, discrimination, breach of contract, and detriment contrary to section 47B of the Employment Rights Act 1996 (ERA 1996).
- •The Respondent applied to strike out the Appellant's claims.
- •The EJ dismissed all claims, finding no breach of contract and no protected disclosure.
- •The Appellant, a litigant in person, argued procedural irregularities and misapplication of law by the EJ.
Legal Principles
Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 governs striking out claims. A claim should not be struck out unless the party has had a reasonable opportunity to make representations.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 37
In considering a strike-out application, the tribunal must take the claimant's case at its highest and consider whether the claims have no reasonable prospect of success, not make findings on the substance of the claim.
Cox v Adecco Group [2021] ICR 1307; Kilraine v Wandsworth LBC [2018] ICR 1850
For a detriment claim under section 47B ERA 1996 following a protected disclosure, the test is whether the employee reasonably believed the information tended to show a likely failure to comply with a legal obligation, not whether the information actually did so.
Section 43B ERA 1996; Cox v Adecco Group [2021] ICR 1307
The 'Johnson exclusion zone' prevents claims for breach of contract relating to dismissal where the dismissal itself is the subject of an unfair dismissal claim.
Johnson v Unisys Ltd [2003] 1 AC 518
Outcomes
The EAT set aside the EJ's decision.
The EJ erred procedurally by failing to give the Appellant sufficient notice that her breach of contract and detriment claims might be struck out and failed to apply the correct test under Rule 37. She also made substantive findings instead of assessing reasonable prospects of success and misapplied the test for protected disclosures.
The case was remitted to a different Employment Judge for reconsideration of the Respondent's strike-out application.
The EJ's errors were material and her decision was unsafe. Remittal to a different judge prevents bias or a ‘second bite’ at the cherry.
Permission to appeal to the Court of Appeal was refused.
The EAT found that there was more than one conclusion open to the EJ on the breach of contract claims, meaning there was no arguable error in the EAT's decision.