Unfair dismissal: No likely compensation not a ground to strike out the claim

Tribunals should not strike out an unfair dismissal claim which has reasonable prospects of success just because compensation is unlikely to be awarded (Evans v London Borough of Brent). 

Dr Evans dismissed for gross misconduct

Dr Evans was employed as a Deputy Head Teacher for 12 years. The school investigated allegations of misconduct and financial mismanagement by members of the senior management team, including Dr Evans.  

Dr Evans was invited to a disciplinary hearing to take place on 3 November 2009 to consider allegations of gross misconduct. He received the investigation report and evidence on 15 October 2009.  He asked for the hearing to be postponed so he could be accompanied by his sister and review the paperwork (which was over 800 pages). 

The school refused to postpone the disciplinary hearing and it took place in Dr Evans’ absence. Dr Evans was dismissed for gross misconduct.

Unfair dismissal claim stayed

Dr Evans issued a tribunal claim for unfair dismissal. 

The tribunal proceedings were stayed as there were criminal proceedings against him and other senior school staff. The criminal proceedings were dismissed in 2013.  

Shortly afterwards the school brought a High Court claim to recover payments Dr Evans had unlawfully paid himself and the tribunal proceedings were stayed again. The High Court ruled in 2018 that Dr Evans had received over £250,000 in overpayments.

The stay was then lifted in the tribunal proceedings.

Tribunal strikes out claim

The tribunal considered whether Dr Evans’ unfair dismissal claim should be struck out for having no reasonable prospects of success. 

It considered that due to procedural unfairness (the school’s refusal to adjourn the disciplinary hearing), it could not conclude there was no reasonable prospect of a finding of unfair dismissal. However, there was no reasonable prospect of him being awarded any compensation and it was not therefore in the interests of justice for the case to proceed.

Dr Evans appealed. 

Employment Appeal Tribunal upholds appeal

The Employment Appeal Tribunal upheld Dr Evans’ appeal. It noted the tribunal had failed to acknowledge the potential value to him of a finding of unfair dismissal. It set aside the tribunal’s judgment and allowed the case to proceed on the basis of procedural unfairness only. 

Comment

The case is a useful reminder of the high hurdle to strike out a claim. Just because a claimant is not likely to be awarded any compensation does not mean their claim has no reasonable prospects of success. In addition, an employee is entitled to pursue a claim for unfair dismissal to obtain a finding they were unfairly dismissed, even if they are unlikely to recover any compensation.