Background:

The claimant worked as a Senior Lecturer for the respondent until he was dismissed in December 2019 for alleged gross misconduct. He brought various claims including sex discrimination, harassment and victimisation.

The claimant presented his claim on 15th May 2020. The Judge recorded events which took place prior to three months before the date of dismissal and cited that they were prima facie out of time.   The respondent applied for a strike out order and failing that a deposit order in relation to the three claims listed above.

Outcome:

The Employment Judge, through a preliminary hearing, struck out the three claims cited above.   However, the preliminary hearing had been listed to consider the applications for strike out and at that point the Tribunal Judge had decided to strike out the claims summarily citing that they were not brought within time.  There was no evidence heard and nothing from the decision showing that consideration had been given to whether evidence should be prepared or considered to determine the preliminary issues arising. The claimant appealed this to the EAT and it was found that the Tribunal had erred. This was because it was dismissed summarily rather than applying Rule 37, which provides the grounds for which the claim could be struck out.  Accordingly, the appeal was allowed.

Practical Guidance for Employers:

This case provides a procedural lesson largely for the Tribunal rather than the parties. That said, the parties should be aware of it to ensure that they are not met with additional time and expense which could occur by going through an appeal. When there is an application for strike out it is right and proper to allow for evidence to be considered rather than making the decision summarily and that it should fall within one of the acceptable categories rather than being made on a whim.

https://assets.publishing.service.gov.uk/media/667037017fef0537f4d6f25e/Dr_Gueorgui_Kolev_v_Middlesex_University__2023__EAT_173.pdf