First Sift (before ET3) Strikeouts

Thanks to James English of Hempsons solicitors for preparing this case summary

Was the employment tribunal right to strike out a claim brought six years after the employment relationship ended as an abuse of process?

No, held the EAT in Higgins and Home Office & Attorney General.

The Claimant, an Immigration Officer, claimed that she had applied for a position with MI5 and that she had been harassed and victimised for raising her concerns. She was admitted to hospital suffering from an acute psychotic illness, following which she resigned.

Six years later, the Claimant claimed unfair constructive dismissal and sought compensation and reengagement. The employment tribunal rejected the claim under the new sifting process (Rule 12) as an abuse of process.

The EAT, in the first appeal on the new sift, reaffirmed that striking out a valid claim, as an abuse of process, should be the last option, Wallis v Valentine. Claims should only be rejected in the sift in the most plain and obvious cases - borderline cases should be dealt with under Rule 27 (no reasonable prospects of success).

As the employment tribunal took into account wholly mistaken factors, and failed to appreciate that the Claimant may have had significant mental health issues, the case was remitted back to a fresh tribunal to reconsider the case under the sift (Rule 12), under Rule 27, and also whether or not the Claimant had capacity to conduct the proceedings.