Thread by @JasonBraier

1/ Clarke v Restaurant Group: A 2nd ET Rules r.12 case in a day! This time about the caution necessary before an EJ rejects an unfair dismissal claim on jurisdiction grounds when there's a possibility of an automatic unfair dismissal claim.
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ C brought an unfair dismissal & breach of contract claim. She didn't have 2 years' service. In a rule 12 consideration, an EJ only accepted that the latter claim could progress due to lack of service for the former. C sought to appeal that decision.

3/ The crux of C's appeal was that her unfair dismissal claim was a s.103A claim. The EAT noted she'd ticked the protected disclosure box, & also that C had applied for reconsideration of the r.12 decision & that didn't appear to have been resolved (even though once listed).

4/ The EAT noted a claim should only be rejected on jurisdictional grounds under R.12 if the lack of jurisdiction is plain & obvious on the face of the claim form. Caution is required, especially in re claims an ET can potentially deal with (as opposed to, eg, a defamation claim)

5/ The EAT noted the alternative rules under r.26-28 allowing for dismissal of a claim at the initial consideration stage. That set of rules includes a procedural safeguard requiring the party to be invited to make written representations & hearing before any decision to dismiss.

6/ In C's case, there was sufficient indication in the ET1 (both in particulars & in ticking the PID box) that C was raising some issue re protected disclosures. Whilst ticking the box may not always be enough, here there was enough to indicate a potential PID claim.

7/ In those circumstances, the EJ erred in rejecting C's unfair dismissal complaint. The EJ hadn't exercised the caution necessary at that stage of proceedings.