The value of a ‘valueless’ claim

In the Employment Appeal Tribunal case of Evans v London Borough of Brent, the EAT rejected an employer’s application that a claimant’s case of unfair dismissal be struck out and dismissed without a hearing to consider the facts. The case does not really break any new ground but is nonetheless a useful one for employees engaged in employment tribunal proceedings. Evans was (and presumably still is) a long running case but the pertinent issues and background can be briefly summarised.

The potential unfair dismissal

Dr Evans was a long serving school headmaster and had achieved a good reputation for maintaining a strong academic record for the school. However, a whistleblower made an allegation that Dr Evans had misappropriated funds beyond that allowed for his personal benefit and the school suspended Dr Evans and launched an investigation into the allegation. In due course the school convened a disciplinary hearing at which Dr Evans was dismissed. The decision to convene a meeting was communicated to Dr Evans on 15 October 2009 and on 21 October 2009 he received an 800 page bundle of evidence. Dr Evans asked to defer the meeting that had been set for 3 November 2009 because of the availability of the person he sought to accompany him to the meeting and because he had insufficient time to understand the evidence against him. The employer refused that adjournment request and went on to dismiss him.

Thereafter Dr Evans made a complaint for unfair dismissal but the case was stayed pending outcome of a criminal investigation and High Court proceedings. In the criminal context Dr Evans later pleaded guilty to a six allegations of false accounting. The council also issued a civil claim against the claimant in the High Court which found the claimant had overpayments of over £250,000. Because this was a High Court decision the findings of fact were binding on the employment tribunal.

Unsurprisingly, the council applied for the Dr Evan’s unfair dismissal claim struck out (dismissed without a full hearing). The employment did precisely that, the basis of this decision was even though the refusal of the council to defer the disciplinary meeting meant it could not be said that the case had no reasonable prospect of success (having a finding of unfair dismissal made against the employer), explaining:

 In the exercise of discretion, I can see no interests of justice in this case proceeding further. These matters have been the subject of litigation for many weeks, in which Dr Evans, through counsel, has had the opportunity to put his case on the substance of these events, albeit not within the framework of unfair dismissal. It is apparent that many of his submissions to the Court were successful. I can see no interests of justice in devoting further substantial judicial resource, or the public funds of Brent, to litigate these events any further.

Given the dismissal for conduct for conduct which the claimant had been later convicted of and a formal finding of fact in a court the employment tribunal was obliged to follow one can certainly understand why the tribunal was sympathetic to that argument.

However, the EAT went on to overturn the strike out decision even though, unlike in a discrimination claim (see s.124(2)(a) of the Equality Act), there is no express remedy of ‘a declaration’ as a distinct remedy in an unfair dismissal claim (i.e., ‘Mr X was unfairly dismissed’). In explaining its decision the EAT said:

 I do not know what the value of a pure finding of unfair dismissal on the basis postulated by this ET might be for this Claimant. However, having concluded that such a finding was a reasonable possibility, I consider the ET erred by holding that the claim should nevertheless be struck out in its entirety. It cannot be said that such a finding would be of no value, or that the interests of justice cannot require a Respondent to be held to account for a procedural unfairness in reaching a decision to dismiss an employee of some 12 years’ service, even if that account cannot lead to any financial award for the employee concerned.

I therefore find that the ET in this case erred, not only in the approach it adopted but also in the broader exercise of its discretion. Having found that it could not be said that the Claimant had no reasonable prospect of a finding of unfair dismissal on the procedural grounds set out at paragraph 75 to 81 of its Judgment, the ET was wrong to strike out this claim in its entirety.

On that basis even though the EAT acknowledged Dr Evans had no prospect of achieving anything other than a ‘finding’ of a procedurally unfair dismissal the decision to strike out the case was overturned.

The case is not in any sense a groundbreaking one, the EAT itself relied on two previous EAT judgements expressing similar views but I do think Evans is a helpful case.

At a most basic level it is a good contemporary restatement of the principle established by the decision in Polkey nearly thirty five years ago: that the right not be be unfairly dismissed is not just concerned with whether dismissal the outcome was fair on the facts (strictly speaking, that any previous errors would not have made a difference to the outcome) but also that the process by which a dismissal decision was reached is procedurally fair. Given the work related criminal findings then dismissal of Dr Evans for these was quite obviously not an unreasonable decision, but that does not mean an employer can just jump to that point and not adopt a fair process.

However, where the case will also be helpful, I think, is as a case to add to the arsenal of cases to be cited by trade union representatives when, if an employment tribunal claim is pursued, an employer’s solicitors (as they sometimes do) begin their chest-thumping bully boy tactics of threatening to seek costs against the ‘unmeritorious’ and doomed claim. If a claim is genuinely hopeless then, threat or no threat, the case should be dropped but all to often the risk of costs is a weapon with which a claimant is brow-beaten. The clear indication that a finding of unfair dismissal, even if not accompanied by compensation, is a legitimate justification for a claimant’s ongoing pursuit of a claim may well be a useful one to reference.

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