Mrs M Miko v Department for Work and Pensions: 6019037/2024 and 6007029/2025
JUDGMENT
Acting in accordance with rule 38(1) of the Employment Tribunals Procedure Rules 2024, the Tribunal refuses the Respondent’s application to strike out the Claimant’s claim on the grounds that there is no reasonable prospect of success.REASONS
[1]By email dated 19 May 2025, the Respondent made an application to strike out the Claimant’s automatic unfair dismissal by reason of making a public interest disclosure and, in the alternative, a deposit order [114]. The Claimant responded to that application by email dated 20 May 2025 [113]. All of which the Employment Tribunal considered before making their decision. At the case management preliminary hearing on 4 December 2025, Employment Judge Moor listed a public preliminary hearing to determine whether any of the Claimant’s complaint of automatic unfair dismissal by reason of public interest disclosure under section 103A Employment Rights Act 1996 has reasonable prospects of success. Both parties made oral submissions, which were considered.[2]In summary, the Respondent’s submissions were that the Claimant raised the issue of unauthorised access using her sign-in credentials in January 2024, which was the disclosure pursuant to her section 103A Equality Act 2010 complaint. The Claimant says the principal reason for her dismissal was that she raised those concerns in January. The Respondent said that it is not what the claim form says and that the claim form is just setting out the chronology and does not link the 2 acts of the Claimant’s raising concerns about her unauthorised access using her sign-in credentials and the dismissal.[3]The Claimant's submissions were that she said that it should be inferred from the wording of her claim form that she was saying that the raising of her concerns was a protected disclosure, and that is why she was dismissed. The particular paragraph that refers to it is under the heading of victimisation and whistleblowing. The Claimant also referred to other allegations that she was making a public interest disclosure but admitted that she did not state that in her claim form and was not relying on those allegations in relation to her complaint of automatic unfair dismissal under section 103A of the Equality Act 2010.[4]I considered the law regarding strike outs, and I consider the law in respect of no reasonable prospect of success strike outs concerning rule 38(1) (a) of the Employment Tribunal Procedure Rules 2024, “that is scandalous, or vexatious or has no reasonable prospect of success”.[5]The case law warns Employment Tribunal that caution should be exercised if a case has been badly pleaded, for example, by a litigant in person whose first language is not English. (See Judge Eady at paragraph 21 Mbiusa v Cygnet Healthcare Ltd UKEAT/0119/18 (7 March 2019, unreported) ). This is exactly the situation in this case. HHJ Eady adds that “taking the case at its highest may well ignore the possibility that it could have a reasonable prospect of success if properly pleaded” (see paragraph 21). In summary in Mbiusa v Cygnet Healthcare Ltd UKEAT/0119/18 (7 March 2019, unreported HHJ Eady held that in view of the lack of clarity as to the claimant's arguments, the proper course of action would be to establish more precisely what the claimant was arguing, if necessary make amendments and then, if still in doubt about chances of success, make a deposit order.[6]The decision to strike out the Claimant’s automatic dismissal complaint is refused, and the Respondent’s application fails. The Employment Tribunal cannot say that there is no reasonable prospects under rule 38(1)(a) Employment Tribunal Procedure Rules 2024, although on the face of the document, the Claimant does not link her alleged disclosure as the reason for her dismissal; she does compare it and depending on the facts, the Claimant is a litigant in person and drafted her claim form, the case put at its highest allows me to conclude that an Employment Tribunal may interpret this as the reason for dismissal. It is for those reasons that I do not strike out the complaint. Approved by