Strike-Out: Where tribunals need to take care

Co-authored by Rachael Brenchley, Trainee, Employment Team

Employers may sometimes need to respond to confused or confusing claims issued by former employees who are not legally represented. Often it will not be clear precisely what the individual is seeking to claim, or whether there is a valid claim that the individual is entitled to pursue. However in the recent case of Mbuisa v Cygnet Healthcare Limited, the Employment Appeal Tribunal emphasised the great care that Tribunals must exercise when deciding whether to strike out such claims.

Facts of the case

Mr Mbuisa brought a claim before the Employment Tribunal alleging automatic constructive unfair dismissal relating to health and safety concerns which he had raised with his employer, Cygnet Healthcare Limited. As he had less than two years’ service with Cygnet he was unable to pursue a claim for ‘ordinary’ unfair dismissal, lacking the necessary qualifying service. It was alleged that Cygnet had failed to act upon Mr Mbuisa’s concerns and that he had subsequently been subject to assaults, a threatened assault, and had been required to carry out lifting work when he was not fit to do so because of injury. Mr Mbuisa then resigned. 

Mr Mbuisa did not have legal representation and his case not clearly pleaded. The Tribunal held two separate preliminary hearings in an attempt to clarify his arguments. Again Mr Mbuisa was not legally represented and having heard from him the Tribunal decided to strike out the case on the grounds that on his own pleaded case his claim could not succeed as Mr Mbuisa was not suggesting that the matters which had caused him to resign had occurred as a result of the original complaints he had made. 

Mr Mbuisa appealed to the Employment Appeal Tribunal.

The decision

Mr Mbuisa was successful in his appeal against the strike-out of his claim.

The EAT noted that they appreciated the difficulties faced by Tribunals in dealing with individuals acting without legal representation; however a decision to strike out a poorly pleaded case will rarely be appropriate and should only be taken in exceptional circumstances.

Particular care should be taken when faced with someone whose first language is not English, or where they do not come from a background where they would be familiar with articulating complex arguments in written form. 
It was noted that the Tribunal had failed to understand what Mr Mbuisa meant, and that it was possible to infer what he was trying to prove in his pleadings, even if it was not explicitly stated.

Mr Mbuisa had alleged that, having had various health and safety matters brought to its attention, his employer had reacted defensively, denying those breaches and failing to take the necessary steps to avoid them happening again. Therefore, while the immediate reasons why he resigned, being the assaults, threatened assault and the requirement to do heavy lifting, might not have occurred directly because of his complaint, what Mr Mbuisa was actually trying to argue was that his employer had allowed these circumstances to arise because of his complaints.

The EAT held that the correct course of action would have been to ensure that the formal pleadings in the case were amended to reflect this argument. The Tribunal would then need to consider whether or not to make a deposit order if it was considered that the case had little reasonable prospects of success.

Practical Points

It is difficult for all parties involved when the person bringing the claim does not have the benefit of legal representation, and is not able to fully communicate what their allegations are. For an employer this can mean that they do not fully understand what they are being accused of, or how to defend it. 

This case gives helpful guidance for how the Tribunals will deal with these situations going forwards; they are unlikely to decide that a poorly pleaded case is enough reason to dismiss a case, and will instead be required to work with the individual to ensure that they are able to properly understand and express their arguments. This process is more likely to result in a deposit order being made than the claim being struck out. 

This case also demonstrates that care should be taken when an employee raises concerns over health and safety issues at work; even if the employee is not dismissed or subject to detrimental treatment as a result of them raising such concerns, if the employer allows the situation to continue and the employee resigns as a result, this may lead to a valid argument of constructive dismissal.