Miss K Greenwood v J D Wetherspoon plc: 2406659/2024
REASONS
[1]The claim of wrongful dismissal is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.[2]This matter came before me in chambers on 12th December 2025 to consider the Respondent’s Application of 31st October 2025 that the Claimant’s claim be Struck Out in accordance with Tribunal Rule 38(1)(a) on the basis that the claim has no reasonable prospect of success.[3]This matter was last before me for what was listed to be the final hearing of the case on 20th October 2025. I postponed the hearing because the Claimant and her lay representative took ill with the symptoms of norovirus shortly before the hearing. The Respondent’s counsel sought to press an application for the Claimant’s claim to be struck out. I declined to hear that application on that occasion, given that the Claimant was not fit to participate in the hearing and that would have deprived her of a fair opportunity to respond. I made the following directions:1.1 By no later than 4pm on 10th November 2025 the Respondent is at liberty to make a written application for the Claimant’s claim to be struck out in accordance with Tribunal Procedure Rule 38. 1 of 71.2 Should the Respondent make such an application, and if the Claimant objects to that proposal, she must write to the Tribunal by no later than 4pm on 1st December 2025 giving her reasons or requesting a hearing at which she can give them.1.3 The matter will be considered by a Judge on the papers on the first available date after 1st December 2025. The Judge will determine what further orders to make.[4]The Respondent made written submissions pursuant to paragraph 1.1 of those directions on 31 October 2025 and sent a copy of that application to the Claimant by email. When the matter came before me, I asked the Tribunal Clerk to check the Tribunal’s email inbox to confirm whether any response had been received from the Claimant. The Tribunal Clerk confirmed that no response had been received.[5]In the circumstances, I was satisfied that the Claimant had a fair opportunity to respond to the Respondent’s application in accordance with Tribunal Procedure Rule 38(2) and it would be in accordance with the Overriding Objective to consider the Respondent’s application on the papers. The Claimant did not object to the application being dealt with in this way and did not ask for the matter to be determined at an oral hearing.The Background
[6]This case concerns a claim for wrongful dismissal brought by Miss Greenwood, a former Bar Associate at the Sir Henry Tate pub in Chorley, employed from 4 September 2023 to 30 September 2024. The Claimant alleges that she was dismissed following a prolonged period of bullying and harassment by colleagues, and a failure by the Respondent to take effective action. The Claimant withdrew her unfair dismissal claim on 29 January 2025. Only the wrongful dismissal claim remains.[7]As the Claimant has withdrawn her unfair dismissal claim, matters relating to bullying, grievance handling, procedural fairness, and compliance with the ACAS Code do not themselves give rise to any cause of action before the Tribunal and are relied upon by the Claimant as background only.[8]The Respondent denies the claim, asserting that the Claimant was dismissed for unauthorised absence and that it made reasonable efforts to investigate her grievance, which was ultimately rejected following an internal inquiry. The grievance investigation involved interviews with 11 staff members and concluded that while the workplace atmosphere was poor, there was insufficient evidence to substantiate the bullying allegations.[9]The Claimant, represented by her father, declined to attend grievance meetings or occupational health assessments, insisting on written-only communication. The Respondent contends that this hindered the grievance process and that it acted in accordance with its internal policies and the ACAS Code. 2 of 7[10]The Claimant seeks compensation including notice pay, lost earnings, injury to feelings, and aggravated damages. The Respondent disputes the quantum and legal basis of most of the claim, pointing out that in a case of this nature, the Tribunal may only award the payment in lieu of notice to which the Claimant would be entitled under the contract of employment, should the Claimant succeed in demonstrating that she was wrongfully dismissed. The Respondent claims that it has already paid the Claimant the holiday pay to which she was entitled.[11]From the papers before the Tribunal, and the comments of the parties at the hearing before me on 20th October 2025, it would appear that the following legal issues fall to be determined in this matter: Issue 1: Wrongful dismissal / Notice pay 1. What was the claimant’s notice period? 2. Was the claimant paid for that notice period? 3. If not, can the Respondent prove to the required standard that the Claimant was guilty of gross misconduct which meant that the respondent was entitled to dismiss without notice?The Facts
[12]From the papers before the Tribunal, there does not appear to be any reasoned dispute between the parties over the following facts, which are set out in the Respondent’s submissions of 31st October 2025:[13]On 22 July 2024 the Claimant’s father e-mailed to say that he told his daughter to be absent. In reply on the same day, Mr Grice, personnel advisor, encouraged the Claimant to raise a formal grievance. On 23 July 2024 the Claimant asked and received permission to maintain contact through her father. On 25 July 2024 Mr Greenwood confirmed the Claimant was not sick. On 30 July 2024 the Claimant was informed, via her father, that “in the absence of a fit note , Kira’s absence may be considered unauthorised and managed in line with Company policy and procedures”.[14]On 19 August 2024 Ms Deborah Walls contacted the Claimant’s father to confirm the Claimant was currently absent without leave, and to provide options to return to work at other branches of the Respondent. In the same e-mail, Ms Walls provided options in respect of the grievance.[15]On 9 September 2024 Mr Edwards requested further information in relation to the grievance.[16]On 16 September 2024 the Claimant was invited to a disciplinary hearing on 19 September 2024 for not attending work since July 2024, and thereby having been absent without leave. The Claimant was warned of the potential consequences of the same. The meeting was rescheduled after the Claimant 3 of 7 failed to attend on 19 September 2024, and it was postponed until 30 September 2024. The Claimant’s termination was confirmed on 4 October 2024. The reason given for that dismissal was that the Claimant was absent without leave from 20th July 2024 until 30th September 2024.[17]From reading the Claimant’s ET1 and the other material before the Tribunal, The Claimant does not dispute that she was absent, or that she failed to provide a sick note, or otherwise was granted leave. The Legal Position[18]The Employment Tribunal Procedure Rules 2024 provide at Rule 38: Striking out 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[19]The power to strike out is discretionary and is to be applied as a two-stage test. At the first stage the tribunal must find that one or more of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim or response. 4 of 7[20]The nature of the inquiry at this stage is to determine whether the Claimant has a “more than fanciful,” chance of success (see, for example, A v B and anor 2011 ICR D9, CA,)[21]In Cox v Adecco Group UK & Ireland and ors 2021 ICR 1307, EAT, the EAT held that an employment tribunal had erred in striking out a litigant in person’s claim that he suffered detriment for making protected disclosures (i.e. ‘whistleblowing’) without properly identifying the issues and analysing whether there was a reasonable prospect of success. In the course of his judgment, His Honour Judge James Tayler provided guidance on how tribunals should approach strike-out applications against litigants in person:• if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike-out will be appropriate• there has to be a reasonable attempt at identifying the claim and the issues before considering strike-out or making a deposit order. The claimant’s case must ordinarily be taken at its highest and the tribunal must consider, in reasonable detail, what the claim(s) and issues are: ‘Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is’• a fair assessment of the claim(s) and issues should be carried out on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim• in the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person ‘may become like a rabbit in the headlights’ and fail to explain the case he or she has set out in writing• in some cases, a proper analysis of the pleadings, and of any core documents in which the claimant seeks to identify the claim, may show that there really is no claim and therefore no issues to be identified. More often, however, a careful reading of the documents will show that there is a claim, even if it might require amendment• strike-out is not a way of avoiding rolling up one’s sleeves and identifying, in reasonable detail, the claims and issues; doing so is a prerequisite of considering whether the claim has reasonable prospects of success. Often it is argued that a claim is bound to fail because there is one issue that is hopeless. For example, in the whistleblowing context, it might be argued that the claimant will not be able to establish a reasonable belief in wrongdoing; however, it is generally not possible to analyse the issue of wrongdoing without considering what information the claimant contends has been disclosed and what type of wrongdoing the claimant contends the information tended to show 5 of 7• respondents, particularly if legally represented, should, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, assist the tribunal in identifying the documents, and key passages of the documents, in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer, and should take particular care if a litigant in person has applied the wrong legal label to a factual claim that, if properly pleaded, would be arguable• if the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances• litigants in person also have responsibilities in this context. So far as they can, they should seek to explain their claims clearly, even though they may not know the correct legal terms, focusing on core claims rather than trying to argue every conceivable point. The more prolix and convoluted the claim is, the less a litigant in person can criticise an employment tribunal for failing to get to grips with all the possible claims and issues. Litigants in person should appreciate that, usually, when a tribunal requires additional information it is with the aim of clarifying, and where possible simplifying, the claim, so that the focus is on the core contentions. The overriding objective also applies to litigants in person, who should do all they can to help the employment tribunal clarify the claim• the employment tribunal can only be expected to take reasonable steps to identify the claims and issues. But respondents, and tribunals, should remember that repeatedly asking for additional information and particularisation rarely assists a litigant in person to clarify the claim. Requests for additional information should be as limited and clearly focused as possible. Discussion and Conclusions Is the test in Rule 38(1)(a) Met?Discussion and Conclusions
[22]I have asked myself whether the Claimant’s claim for wrongful dismissal has a reasonable prospect of success, applying the principles set out above. In doing so, I have taken the Claimant’s case at its highest and have read the ET1 and the documents in which the Claimant seeks to set out her case. I have also borne in mind that the Claimant is a litigant in person and the guidance in Cox v Adecco Group UK & Ireland.[23]The Claimant’s remaining claim is for wrongful dismissal. This is a contractual claim. The Tribunal’s task is to determine whether the Respondent was entitled to dismiss without notice. Matters of procedural fairness, grievance handling, or compliance with the ACAS Code do not of themselves determine liability in a wrongful dismissal claim. The Claimant’s allegations of bullying and harassment, taken at their highest, may provide background to her absence 6 of 7 from work but they do not, in themselves, constitute a cause of action before the Tribunal now that the unfair dismissal claim has been withdrawn.[24]On the Claimant’s own case, she was absent from work from 20 July 2024 to 30 September 2024. It is not in dispute that she did not provide a fit note or other medical certification when requested, and it is not in dispute that she had not been granted leave for that period. The Claimant was warned that, in the absence of a fit note, her absence might be treated as unauthorised and managed in line with policy and procedures. A disciplinary hearing was convened to address her prolonged absence without leave, and she did not attend. She was dismissed on that basis.[25]In those circumstances, even taking the Claimant’s allegations of bullying and anxiety at their highest, the Claimant’s pleaded case does not identify any contractual basis on which the Respondent was not entitled to treat prolonged absence without leave and without medical certification as misconduct capable of justifying dismissal without notice. The Claimant has not identified a factual or legal basis on which she could establish that dismissal without notice was a breach of contract.[26]I therefore conclude that the wrongful dismissal claim has no reasonable prospect of success. The ground in Rule 38(1)(a) is made out. Discretion[27]Having found that the Rule 38(1)(a) ground is established, I have considered whether to exercise the Tribunal’s discretion to strike out the claim. The Claimant has been given a reasonable opportunity to make representations under Rule 38(2) and has not responded to the application or requested a hearing. The claim has been listed previously for a final hearing and the Respondent has incurred cost and time in preparing for that hearing. In those circumstances, and having regard to the overriding objective, I consider it appropriate and proportionate to strike out the claim.[28]The claim is therefore struck out pursuant to Rule 38(1)(a).