One Source Aug 20 Composite 600 final

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Employment Tribunal wrongly failed to allow that finding of unfair dismissal - in absence of monetary remedy - could be of value: EAT

An Employment Tribunal wrongly failed to allow that a finding of unfair dismissal, even absent the possibility of any monetary remedy, could be of value, in a case brought against a council by a deputy head teacher, the Employment Appeal Tribunal has ruled.

Given findings made in related High Court proceedings, including that the claimant had received considerable sums in overpayments, the ET had concluded that the claimant's unfair dismissal claim had no reasonable prospects of success save on the ground of procedural fairness arising from the London Borough of Brent’s failure to adjourn a disciplinary hearing.

Although it could not, therefore, be said that the entire claim had no reasonable prospect of success, the ET also found that there was no prospect of the claimant receiving any financial award.

Given there could be no declaratory remedy, and considering itself bound by the decision in Nicolson Highlandwear v Nicolson [2010] IRLR 860 EAT, the ET therefore concluded that the claim should be struck out.

It further considered that it was not in the interests of justice for further substantial judicial time to be spent on the claim or for Brent to incur further costs. In the alternative, the ET stated that it would have made Deposit Orders on the question of fairness, save in respect of the procedural issue relating to the failure to adjourn the disciplinary hearing, and on any claim for a basic or compensatory award.

The claimant appealed.

In Evans v The London Borough of Brent (Practice and Procedure –- Striking Out) [2020] UKEAT 0290_19_0603 Mrs Justice Eady concluded that the ET had wrongly failed to allow that a finding of unfair dismissal, even absent the possibility of any monetary remedy, could be of value.

This had also led the ET to err when determining whether it was in the interests of justice for the claim to proceed, the judge said.

Mrs Justice Eady added that, the ET having found that there were reasonable prospects of a finding of unfair dismissal on procedural grounds, it could not be said that such a finding would be of no value or that the interests of justice could not require that a respondent be held to account, even if that could not lead to any financial award for the employee concerned.

Other than the procedural unfairness issue it had identified, the ET had been entitled to find that all other parts of the claim of unfair dismissal should be struck out, the EAT judge said.

That did not, however, justify the striking out of the entire claim and to that extent the ET's judgment would be set aside.