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5 October 2012
Employment Appeal Tribunal (EAT)
His Honour Judge Peter Clark
A claim may be struck out at a pre-hearing review if a tribunal concludes that it has no reasonable prospect of success. The tribunal does not hear all the evidence at the pre-hearing review - there would be no point: it might as well hear the whole case. But this case shows it can consider some oral and documentary evidence and that strike-out applications can succeed even if there is a ‘crucial core of disputed fact'.
E asked for and was granted a career break. With the application form for a career break was a booklet which clarified that she would not be guaranteed the same job on her return. E denied ever having completed an application form and therefore ever having received the booklet. She also asserted that an employee who was junior to the manager who granted her request had told her that she would return to her old job - which the employer denied. On her return she was not given back her old job. She claimed she had been unfairly dismissed.
A tribunal heard some evidence and reviewed the documents. It concluded that E's version of events was ‘inherently implausible' and struck the claim out as having no reasonable prospect of success.
E appealed. One of the grounds was that the tribunal had misunderstood the law of strike-out. In the civil courts, strike-out applications invariably proceed without evidence, relying on the facts as stated in the claim. But, the EAT held, that is not so in employment tribunals, where the rules specifically allow oral and written evidence and representations. Therefore, even if there are core factual disputes, they can be resolved at a strike-out application.
The status of employment rights on the transfer of an undertaking is an extremely complex area of...