The claimant worked part-time at a care home as receptionist but had covered for an administrator who had been off ill for a long period and subsequently took voluntary redundancy. When the employer sought to rationalise the admin team the claimant was not able to get the admin role on a part-time basis and accepted voluntary redundancy. The respondent disputed that the claimant had not been offered the role during the consultation process. The ET struck the claim out as fundamentally flawed.

In this appeal Mrs Justice Eady, President of the EAT, asks the question: was the ET wrong to conclude that the respondent would inevitably discharge the burden of proving the reason for the dismissal? At [29] she concludes that

"As the case-law makes clear, a claim should not be struck out where the central facts are in dispute. In the present case, the ET assumed that the factual dispute between the parties could not be relevant to the issues to be determined on the claimant’s complaint of unfair dismissal but that demonstrated a failure to engage with the way the claimant was putting her case [……..]. The ET was required to engage with the case before it and to have regard to all the documentation, taking the claimant’s case at its highest. Although the ET had reminded itself of these requirements, it then failed to adopt this approach in its consideration of the claimant’s claim”

This was an error of law so the case was remitted for a full merits hearing.