Tuesday, November 16, 2010

Unfair Dismissal - Striking Out (How Not To Do It)

Mr Balls and his wife worked for Downham Market High School. She was the Bursar and he was the groundsman.

An allegation of theft was made against Mrs Balls and both she and her husband were dismissed for gross misconduct. Mr Balls denied doing anything wrong and was never charged with any offence. His wife subsequently went to prison for 18 months after admitting two counts of theft involving a total of £115,000.

Mr Balls claimed Unfair Dismissal and unlawful deduction from wages. He asked the Employment Tribunal to separate his case from that of his wife, but they refused. The cases were stayed by the Tribunal pending the conclusion of the criminal proceedings.

When the criminal case against his wife finished Mr Balls wrote to the Employment Tribunal to say that he wanted the case to carry on. There was then some very unsatisfactory correspondence with the Tribunal in which they accused him of not giving them enough information and warned him that his case could be struck out.

The Respondent applied to have Mr Balls' Claims struck out on the basis that they had no reasonable prospect of success and that he was not actively pursuing them.

The Employment Tribunal struck out his Claims on both grounds. Mr Balls was unable to attend that hearing due to illness.

Not surprisingly he appealed to the Employment Appeal Tribunal, where he was represented by Counsel under a free representation scheme.

The EAT was scathing in its criticism both of the Tribunal for its aggressive letters to Mr Balls and of the Employment Judge for striking out the Claims.

It said it could not possibly be right to strike out the Claim for unlawful deduction from wages when the Respondent had never filed an ET3 Response to it!

Furthermore the Judgment of the Tribunal gave the impression that the Employment Judge had not fully considered the facts or the legal principles to be applied. She seemed to have tarred the Claimant with the same brush as his wife and to have assumed that because she was guilty he also had no reasonable prospect of success - even though he worked in a different department to her and did not have access to School funds.

It was also wrong to say that he had not been actively pursuing the case when he had in fact been trying to no avail to get the Tribunal to get on with it.

The Judgment stresses that strike out is a draconian penalty which deprives a party of the chance to have their case decided on the merits. It is only to be applied in the clearest of cases - where there is no (not just "poor") reasonable prospect of success or where the delay is intentional or has made a fair trial impossible.

The case is reported at:-

http://www.employmentappeals.gov.uk/Public/Upload/10_0343rjfhSBDM.doc