Striking Out Unfair Dismissal Claims

[Thanks to Robert Dickason of Outer Temple Chambers for preparing this case summary]

The EAT (HHJ Richardson) has handed down its decision in Lockey v East North Homes Leeds, which is authority for the proposition that unfair dismissal and breach of contract claims should not be struck out for having no reasonable prospect of success when it is arguable that part of the employer's reasoning for finding gross misconduct was flawed.

Mr Lockey had been dismissed for gross misconduct, having failed to carry out a management instruction, sworn at a senior member of staff, and behaved unacceptably in front of a client. The Tribunal accepted at the PHR that the third of those reasons was arguably flawed because the employer had not interviewed the client.

At that point, held the EAT, the tribunal should have allowed the claims to proceed. In order to determine whether dismissal for gross misconduct was unfair in the circumstances, it would be necessary to hear evidence as to whether the employer might reasonably have dismissed on the first two grounds only, particularly when they were factually disputed and might not, in the circumstances, amount to gross misconduct.