Thread by @JasonBraier

1/ Szymoniak v Advance Supply Chain: A good example of an ET getting a no reasonable prospects of success strike out application badly wrong, & also emphasis on the importance of considering the evidential impact of a non-relabelling amendment

bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ S was employed by a logistics company. She resigned in Nov 2018. Over the previous 8 or so months, along with receiving a number of warnings, she also had a number of complaints including 1 of sexual harassment. S brought an unfair dismissal claim (though not an EqA one).

3/ In resisting the claim, ASC asserted S had resigned rather than being dismissed, denying repudiatory breach. Soon before a PH, S asserted a sexual harassment claim & also at a PH she asserted a victimisation claim. The EJ listed a hearing for those to be considered.

4/ At that next PH, the EJ also considered a strike out application. As will be self-evident from the judgment, the EJ made all manner of mistakes in doing so, most especially not taking S's case at its highest, but also misunderstanding affirmation & a lack of clear reasoning.

5/ HHJ Auerbach emphasised the stringency of the strike out test, the need to take the claim at its highest, the restraint of a PH EJ where there are disputed facts, & that Kaur provides for resuscitation of affirmed breaches on further breach/contribution to breach.

6/ The EJ had also dealt with amendment applications re sexual harassment & victimisation, refusing both as being out of time & not mere relabelling. The EAT held the EJ entitled to find that these were not merely matters of relabelling due to necessary causative elements.

7/ However, the EAT emphasised that when an EJ relies on the fact an amendment isn't relabelling in determining the application, it's essential to explain the impact of allowing the amendment on the scope of evidential & factual enquiry. This EJ hadn't so the appeal was allowed.