The claimant, the deputy head teacher of a local authority community school, was suspended following allegations of misconduct and financial mismanagement. After a formal investigation the claimant was notified that a disciplinary hearing would be held in three weeks time. When he was sent over 800 pages of paperwork, including a copy of the investigation report and annexes, the claimant requested a postponement to allow him more time to master the paperwork and for his representative, his sister, to attend. His request was refused and the hearing took place in his absence, resulting in a decision that he should be dismissed for receiving unlawful and excessive payments. His complaint to an employment tribunal that he had been unfairly dismissed was stayed pending High Court proceedings seeking the recovery of money from the claimant and other members of staff alleged to have received unlawful payments. The court upheld the findings of the disciplinary proceedings and the claimant was ordered to repay the money. On a preliminary hearing of his unfair dismissal complaint, an employment tribunal considered whether the complaint should be struck out pursuant to rule 37 of the Employment Tribunals Rules of Procedure 2013 on the ground that it had no reasonable prospect of success. An employment judge decided that a procedural issue arose in respect of the amount of paperwork served on the claimant and the refusal to grant a short delay to allow his representative to attend, and that he could not conclude that there was no reasonable prospect of an unfair dismissal claim succeeding. He then found that a fair process would not have made any difference and the claimant would have been dismissed in any event. The judge found that there was no prospect of the claimant receiving any compensation and, since a declaratory remedy was not available for an unfair dismissal complaint, he struck out the claim, stating that it was not in the interests of justice for further judicial time to be spent or for the local authority to incur further costs.
On an appeal by the claimant—
Held, appeal allowed. The right not to be unfairly dismissed included the right to a fair procedure, which required an employment tribunal to consider whether an employer acted reasonably, having regard to the employer’s size and administrative resources, in accordance with section 98(4) of the Employment Rights Act 1996. Although the tribunal retained a discretion to consider whether the claimant’s right to have his claim determined did not outweigh the wider interest in ensuring cases did not proceed where it would be an abuse of process for them to do so, the tribunal had erred in failing to acknowledge the potential value of a finding of unfair dismissal. In holding that it was not in the interests of justice for the local authority to spend public funds to continue the litigation the tribunal had overlooked the fact that the only remaining issue was the failure to grant an adjournment, which would not require substantial expenditure, and having concluded that a finding of unfair dismissal was a possibility the tribunal was wrong to have struck out the whole claim (paras 48, 50, 51, 53, 54).
Lachlan Wilson (instructed by Edwin Coe llp) for the claimant.
Jennifer Thelen (instructed by Brent Legal Services, Wembley) for the respondent.