Can a claim for unfair dismissal due to whistleblowing be struck out without hearing the evidence as to the reason for dismissal?
That would very rarely be appropriate where the reason for dismissal is the central dispute between the parties, held the EAT (Langstaff P) in Romanowska v Aspirations Care Limited.
The Claimant worked in a care home and was dismissed following an incident during which she allegedly used inappropriate physical force with a resident. At the disciplinary hearing prior to the dismissal the Claimant raised complaints about the care home's use of Agency staff. At a PHR the Employment Judge held that the Claimant's complaints may be capable of being a public interest disclosure yet proceeded to strike out her whistleblowing claim as having no reasonable prospects of success. The Claimant appealed.
The EAT held there was a real dispute of fact and to know what was in the mind of the employer at the time of dismissal (and thus what the principal reason for dismissal was) it was necessary for the employment tribunal to hear and evaluate evidence. The Employment Judge had made an error of law, the appeal was allowed and the case was remitted to a fresh employment tribunal.