Claims for £85,000 in damages are struck out with an order made as to costs

Julie Duane
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Julie Duane



In a recent Open Preliminary Hearing against a public sector organisation, the Claimant’s claims for constructive unfair dismissal, breach of contract, harassment and an alleged failure to comply with Section1 of the Employment Rights Act (“ERA”) 1996 were struck out and an award of costs in the sum of £600 was ordered against the Claimant.


The Claimant commenced employment under a fixed term contract until the Claimant resigned with notice with less than 2 years’ service. The Claimant alleged that this was caused by the manner in which the Respondent’s probation policy had been actioned which, in turn, the Claimant alleged constituted a repudiatory breach of contract. The Claimant further asserted that the Respondent’s probationary policy was contractual and that the processes and procedures carried out by the Respondent in extending the Claimant’s probationary period amounted to breaches of contract. 


In respect of the claims pursued, the Tribunal held that:

Section 108(1) of the ERA 1996 stipulates that “Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination. Due to the Claimant’s lack of requisite service and his refusal to withdraw this claim, due to its inherent weaknesses, the claim was struck out. 

The claim for a failure to provide a statement of particulars, a parasitic claim which had been advanced in conjunction with the Claimant’s claim, was misconceived and therefore struck out.

The claim for breach of contract was struck out due to the clear and unambiguous contemporaneous documentation before the Tribunal which clearly distinguished why the policies relied upon by the Claimant were non-contractual. The Claimant’s view that the policies were contractual was misguided and was clearly undermined by the unequivocal documentation which showed the contrary.

Further, the Tribunal held that even if the claim for breach of contract was well founded, which it did not, that the Claimant had conceded that he had suffered no financial loss and that the damages sought exceeded the cap the Tribunal would be entitled to award (£25,000), Article 10, Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623). For those reasons the claim was struck out.

The claim for harassment also failed and was struck out. Section 26(1) Equality Act 2010 stipulates: 

“A person (A) harasses another (B) if

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B’s dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

The claim, as advanced, failed to demonstrate any causal nexus or correlation with a protected characteristic. When advancing a claim a claimant may suggest that they have been “discriminated or harassed” when they are, in fact, referring to bullying or behaviour which they perceive as unkind. However, in this case, the claimant readily accepted that no protected characteristics interplayed between the alleged treatment of the Respondent towards the Claimant. As a result, the Claimant’s standalone claim for alleged bullying, bearing in mind the Claimant’s lack of service, was insufficient so as to engage the statute under Section 26 of the Equality Act 2010. The claim was therefore struck out.


In Opalkova v Acquire Care Ltd EA-2020-000345-RN the EAT provided guidance that, where a tribunal is deciding whether there has been unreasonable conduct, the following questions should be considered:

  1. At the stage that the claim or response had no reasonable prospect of success, did the relevant party know that was the case?
  2. If the relevant party did not know that the claim or response had no reasonable prospect of success, should they have known?

If the threshold for making an order is made out under Rule 76(1)(a) of the 2013 Rules, then it is for the tribunal to consider all relevant factors in determining whether to exercise its discretion to make an order.

In respect of costs it was highlighted that the claims pursued by the Claimant were bound to fail and that this had not only been brought to the Claimant’s attention by the Tribunal in correspondence in relation to some claims (i.e., the Claimant having the requisite service), but was also highlighted clearly by the Respondent, who had placed the Claimant on notice as to the failings in his claims under a without prejudice save as to costs communication. The Claimant had been on notice as to costs for some time prior to the hearing which set out the issues the claimant would have in the Tribunal establishing jurisdiction and/or merits in dealing with the claims and invited the Claimant to withdraw those claims, following which no costs order would be made or sought against him. The Tribunal held that the correspondence from the Respondent was correctly labelled and not a threat, as alluded to by C, and was correspondence which the Respondent was entitled to send. The Tribunal held that this was clearly a case where the Tribunal had discretion to make an order as to costs. The Tribunal also consider the means of the Claimant and ordered the Claimant to pay costs in the sum of £600.

Written by Julie Duane