[Thanks to Sian McKinley of Cloisters for preparing this case summary]
Yes - provided evidence is heard on the factual disputes - says the EAT in Eastman v Tesco Stores.
Ms Eastman was a part-time customer assistant. As a result of personal difficulties, she sought and was granted a career break of four years. It was her case that there was an express agreement that she could return to her old job on the termination of the career break. This was denied by Tesco.
In 2012 she attempted to return to her old job but her request was refused. She brought a claim for unfair dismissal and relied on the alleged express agreement to show that her employment continued through the career break. At a PHR, the employment judge heard evidence from Ms Eastman and an employee of Tesco. He concluded there had been no express agreement that Ms Eastman could return to her old job on the termination of the career break. The case was struck out on the basis it had no reasonable prospects of success.
Ms Eastman appealed and contended there had been a misapplication of the law of strike-out. Ms Eastman relied on the proposition that, where there is a crucial core of disputed facts, these are not susceptible to determination other than at a full hearing having heard the evidence. Such a case is not suitable for strike-out.
The EAT noted that an employment judge may take into account oral and documentary evidence at a PHR. Having heard evidence, an employment judge is entitled to resolve a core factual dispute. Having so resolved the factual dispute, the employment judge is entitled to conclude that a claim had no reasonable prospects of success. This case could be distinguished from those cases where no evidence was heard and there remains a crucial core of factual dispute at the PHR stage, such as in Ezias, Balls and Shoebridge.