May 16, 2019
Our Chartered Legal Executive, Lucy Watson, comments “Although not a necessity to have legal representation for an Employment Tribunal hearing, failure to gain legal advice from an early stage could result in your claim being struck out or badly pleaded. In this matter a claimant’s claim was incorrectly struck out by the Employment Tribunal, to be remitted by the Employment Appeal Tribunal, due to his claim being pleaded in a 49 page document.”
This very nearly happened to a worker who claimed that he had paid a heavy price for bringing health and safety concerns to his employer’s attention.
The worker resigned after less than a year in the job. He chose to represent himself in claiming, amongst other things, that he had been unfairly constructively dismissed for alerting his employer to harmful or potentially harmful work practices, contrary to Section 100 of the Employment Rights Act 1996. That claim was, however, struck out by an ET following a preliminary hearing on the basis that, even on his own account, it had no reasonable prospect of success.
In ruling on his challenge to that decision, the Employment Appeal Tribunal (EAT) noted that the ET deserved sympathy in that, in the absence of legal advice, the worker had presented his case in a 49-page narrative document which, whilst having taken considerable time to prepare, lacked clarity. It was in the circumstances hardly surprising that the ET had misunderstood an important aspect of his case.
On analysis of the document, it could be discerned that the worker was claiming that the employer had reacted defensively to his health and safety concerns, denying that they had any substance and failing to take any steps to address them, and that that amounted to a fundamental breach of his contract.
Although the immediate cause of his resignation was alleged assaults, threatened assaults, or being required to perform lifting work when unfit to do so, he had claimed that the employer failed to act to protect him because of the health and safety concerns he had raised. That was a viable argument and the draconian step of striking out the claim was therefore unjustified. The claim was reinstated and the case was remitted to the ET for a full hearing.
If you believe you have been unfairly/constructively dismissed or discriminated against we recommend speaking to one of our specialist employment Lawyers about your potential claim first. Contact us on 01452 222340 to book an initial consultation with our employment team.
Mbuisa v Cygnet Healthcare Limited. Case Number: UKEAT/0119/18