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Appeal No. UKEAT/0349/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 August 2010

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

WM A MERRICK (FORMERLY T/A WM A MERRICK & CO SOLICITORS) (APPELLANT)

MRS M FEARON VAUGHAN SIMPSON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR W A MERRICK

(The Appellant in Person) For the Respondent No appearance or representation by or on behalf of the Respondent.

PRACTICE AND PROCEDURE

Striking-out/dismissal

Preliminary issues

Issue as to whether Claimant was dismissed under s95(1)(a) Employment Rights Act 1996 for purpose of her unfair dismissal claim ought to be dealt with as a preliminary issue at a PHR, rather than at a full merits hearing. Plainly it should on the basis of the Respondent's application for strike out under ET rule 18(7)(b).

Appeal allowed: case remitted to Employment Tribunal for PHR to take place.

1. This case has a somewhat complicated history, although the issue raised in the present appeal concerns a short procedural point.

1. The case has been proceeding in the Stratford Employment Tribunal. The parties are Ms Miriam Fearon Vaughan Simpson, Claimant, and Mr Merrick (formerly t/a WMA Merrick & Co), Respondent. I shall refer to them as Claimant and Respondent respectively.

1. The Respondent carried on practice as a solicitor, employing the Claimant as a solicitor's clerk for some 23 years. In 2007 the solicitor's disciplinary tribunal suspended the Respondent from practice for 12 months. By an Order of the Divisional Court dated 19 December 2007 that suspension was confirmed on appeal to take effect from 1 February 2008. Meanwhile, on 5 June 2007, the Claimant was declared bankrupt. She was discharged one year later.

1. On 1 April 2008 the Claimant commenced proceedings in the Employment Tribunal complaining of unfair dismissal, failure to make a redundancy payment, breach of contract in failing to pay notice pay and arrears of holiday pay. The claims were resisted and the Respondent raised a counterclaim.

1. Following a Case Management Discussion held before Employment Judge Gilbert on 2 March 2009 a Pre-Hearing Review was held before Employment Judge Burgher on 20 May 2009. By a judgment with reasons dated 15 June 2009, that Judge dismissed all the Claimant's claims save for that of unfair dismissal on the basis that they were brought by the Claimant whilst an undischarged bankrupt without the knowledge or authority of the official receiver. The Judge further held that the Respondent was entitled to proceed with his counterclaim. Against the latter, but not the former ruling the Claimant appealed (EAT/0490/09/DA). That appeal was dismissed by Mitting J on 7 May 2010.

1. Separately, the Respondent also appealed against the PHR judgment of Judge Burgher. Materially, as appears from the judgment of Slade J in a rule 3(10) application in that appeal (PA/0875/09/DA), Mr Merrick complained that Employment Judge Burgher ought to have considered the Respondent's application to strike out the Claimant's outstanding claim of unfair dismissal at the PHR held on 20 May 2009. I have read the Respondent's application to the Tribunal dated 30 April 2009; it does not, in terms, raise what I shall call the Rose v Dodd point with which I am concerned and to which I shall return.

1. Slade J dismissed the Respondent's application under rule 3(10), but in the course of her judgment said this at paragraph 7:

"An Employment Judge or Employment Tribunal who will or which will have conduct of this matter will no doubt consider the application made by Mr Merrick to strike out Mrs Simpson's claim for unfair dismissal. If there is an arguable case that Mrs Simpson was unfairly dismissed they may wish to consider as a preliminary point whether Mrs Simpson establishes that she was dismissed. These matters are within the case management powers of the Employment Tribunal. I have every confidence that the Employment Tribunal administration will consider and deal in an appropriate manner with the applications made by Mr Merrick to strike out the unfair dismissal claim and for any other directions for handling of the unfair dismissal claim brought by Mrs Simpson."

1. Heartened by those observations, the Respondent made a further written application to the Tribunal dated 21 January 2010 for an order striking out the Claimant's unfair dismissal claim by way of a hearing of a preliminary point. At paragraph 6 he submitted that the Claimant did not plead an actual dismissal under section 95(1)(a) of the Employment Rights Act 1996; her contention that her employment was terminated by virtue of the Respondent's suspension from practice was inconsistent with the Court of Appeal authority of Rose v Dodd, reported at [2005] ICR 1776, and if she were relying on constructive dismissal under section 95(1)(c) ERA then the claim must fail for want of a written statutory grievance.

1. That application was referred to Employment Judge Burgher who directed, by a letter dated simply May 2010 (and received by the Respondent on 14 May 2010) that the strike out application should be heard by the full Employment Tribunal conducting the substantive full merits unfair dismissal hearing, presently fixed for 15 to 17 September 2010. The Judge further permitted the Respondent to amend his counterclaim in respect of the value of cheques allegedly forged by the Claimant from £1,004 to £1,400. That is not a matter that concerns me today.

1. Against the first May 2010 direction, the Respondent brings the present appeal. Permission for the appeal (EAT/0349/10/ZT) to proceed to this full hearing was granted by Silber J on the paper sift by an order dated 12 July 2010.

1. The principal ground of appeal raises the Rose v Dodd point. In Rose v Dodd the Court of Appeal affirmed the decisions of the Employment Tribunal and Employment Appeal Tribunal below to the effect that intervention in the solicitor's practice by the Law Society did not automatically terminate the employment of the Claimant employee of that firm. I accept Mr Merrick's submission that the same principle applies where a solicitor is suspended from practice, as in this case.

1. Mr Merrick submits that that principle applies in the present case, relying on the way in which the Claimant herself puts her case on unfair dismissal in her form ET1. At paragraph 5, under the heading 'Unfair Dismissal or Constructive Dismissal' she says this:

"My employment has ceased due to Solicitors Regulation Authority subject a hearing, on my employer in the solicitor's disciplinary tribunal which resulted in a order of suspension from practice (sic)."

1. Earlier in the form ET1 at paragraph 4.1, in answer to the question: "When did your employment end?" she writes: "31 01 2008". That, of course, was the day before Mr Merrick's suspension commenced following the Order of the Divisional Court.

1. In these circumstances, he contends, Judge Burgher was wrong in law in not ordering a preliminary hearing to consider the Respondent's strike out application, since a finding of no dismissal would dispose of the Claimant's remaining claim without the need for a full merits hearing. Mr Merrick tells me today, as he has said in the past, that if the Claimant's case is dismissed he would not pursue his counterclaim.

1. The Claimant does not appear today, but, following an extension of time, she has lodged a detailed Respondent's Answer and a bundle of documents, some of which I have referred to earlier.

1. I note in particular, and put it to Mr Merrick in the course of discussion, the Claimant not being present and not being represented, her assertion in the Answer that on 24 January 2008 the Respondent gave her her form P45. Pausing there, in answer to that late submission, it not appearing from the earlier pleadings or Case Management Discussions in this case, Mr Merrick has shown me a copy of the P45 prepared by his accountant, which shows a leaving date of 31 January 2008. He has also shown me in that same bundle, which he has called bundle one, at page 16 the second page of a list of documents prepared by the Claimant in the Employment Tribunal proceedings, which list 'P45' and a date '08 01 08'. Mr Merrick tells me that a copy of that document has not been disclosed to him.

1. On the material that is presently before me it follows that there is a real question mark as to whether or not this apparently new case advanced by the Claimant, that she received her P45 on 24 January 2008, is one that has any credibility. Returning to Mr Merrick's submission, it is simply that on the face of the pleaded ET1, the Claimant relies on his suspension as the terminating event and that is inconsistent with the approach of the Court of Appeal in Rose v Dodd.

1. It seems to me that that is a crisp point which is eminently suited to a preliminary hearing in circumstances where determination of that point in favour of the Respondent would wholly dispose of the Claimant's claim, as it is now outstanding. In these circumstances, although I accept that in accordance with rule 18(6) of the Employment Tribunal Rules a strike out application of this type may be heard either at a Pre-Hearing Review or at a hearing, it seems plain to me that on a proper appreciation of the application made by Mr Merrick, the overriding objective under Regulation 3 of the Regulations plainly requires that it is dealt with in advance of a full merits hearing.

1. In these circumstances I shall allow this appeal and direct that the hearing currently listed as a full merits hearing on 15 to 17 September 2010 be vacated and instead direct that the 15 September 2010 be used for a Pre-Hearing Review before a different Employment Judge at which the only question will be whether or not the unfair dismissal claim has any reasonable prospect of success under rule 18(7)(b) in accordance with the Respondent's application, to which I have referred, dated 21 January 2010.