Ms J Chater v Bristow Helicopers Ltd and Others: 8001057/2024
JUDGMENT
The judgment of the Employment Tribunal is that the respondent’s application to strike out the claimant’s breach of contract claim is refused.REASONS
[1]This preliminary hearing was listed to take place in chambers following the respondents’ application to strike out part of the claimant’s claim for breach of contracts, which failing to make a deposit order.[2]I have taken account of the respondent’s correspondence dated 18 and 29 April 2026, and the claimant’s objections dated 30 March 2026. The respondent’s submissions[3]The respondent submits that the claimant’s claim that the transfer of her employment as Pilot on the SH Crew to Pilot on the Search and Rescue Crew is a breach of contract has ETZ4(WR) no reasonable prospects of success, or very little reasonable prospects of success, and that the claim is misconceived. Accordingly they seek strike out of the claim which failing a deposit order.[4]In support of their application the respondent relies on the following.[5]The claimant signed a letter on 28 January 2022 accepting the transfer, which is foundational to a common law breach of contract claim, that is one cannot accept a new contract/variation of a contract and later in the future allege that this was a breach.[6]The claimant maintained the rate of her prior salary throughout the period of training and accordingly suffered no loss, it being foundational to a common law breach of contract claim that a loss is caused by the alleged breach.[7]It is not accepted that the claimant indicated that she was working under protest, rather that the transfer was not her preferred choice. The transfer to the AW189 SAR role was a significant financial investment for the first respondent because of the cost of the retraining involved. The claimant was invited to withdraw from the training she if did not wish to proceed with the transfer, which she did not do.[8]It is denied that the transfer was a breach of the implied term trust and confidence but in any event the claimant waived any such breach by continuing with the training for the role.[9]The claimant has failed to quantify loss she alleges she suffered for loss of seniority, status, and career progression. The claimant’s salary was maintained throughout her period of training and she would have received a pay increase on completion.[10]The claimant claims that she suffered loss of employment as result of this breach of contract however damages for loss of employment are not properly payable in a breach of contract claim and this head of loss is covered in the claimant’s unfair dismissal claim.[11]The claimant has not indicated how the employment tribunal would be able to put her in the position that she would have been in had she not suffered the alleged breach of contract. The tribunal cannot order reinstatement or re-engagement in a breach of contract claim. The claimant’s salary would have increased had she passed the training and become an AW189 pilot. The claimant’s submissions[12]The claimant objects to the application for strike out, which failing deposit order, by reference to the relevant tests, that is on the basis that a claim may only be struck out if it has no reasonable prospect of success, is scandalous or vexatious, or is otherwise an abuse of process; whereas a deposit order may only be made where the Tribunal considers that the claim has little reasonable prospect of success. The claimant argues that these are high thresholds, and it is well-established that a fact-sensitive claim should not be struck out unless it is plain and obvious, or bound to fail. The claimant argues that the respondents’ submission that the claimant’s claim is bound to fail is wholly misconceived.[13]The claimant relies on certain facts which she states are supported by the pleadings, her witness statement and documentary evidence. In particular, the claimant submits as follows.[14]The claimant alleges that she was forced to sign the new contract under protest and necessity. She asserts that she made it clear clear, in writing and orally, that she did not wish to move from her prior role to the AW189 Search and Rescue role. She only signed the new terms and accepted the transfer because she was told unequivocally that this was “the only role available”, and that refusal would result in the termination of her employment. The claimant’s evidence is that she was, in effect, given no meaningful choice; it was a “take it or leave it” scenario, and she made repeated representations contesting the fairness and basis for the change.[15]The claimant argues that she was induced to sign under economic duress. The respondents’ reliance on the claimant’s signature as evidence of consent ignores the reality of the employment relationship and the doctrine of economic duress. The claimant was acutely aware of her financial responsibilities and the need to provide for her family. The respondents had an inequality of bargaining power and the claimant was faced with the choice of signing or being dismissed. This does not amount to genuine, voluntary consent.[16]The claimant states that she expressly reserved her position and did not waive the breach. She states that she repeatedly made clear, both at the time and subsequently, that she did not accept that the respondents were entitled to unilaterally remove her from her previous post, demote her, and reduce her seniority and career progression.[17]The claimant will rely on contemporaneous correspondence in which the claimant stated that she was signing under duress and did not accept the legitimacy of the respondents’ actions. There was no waiver or affirmation of the breach.[18]The claimant will argue that the transfer was a breach of express and/or implied terms, specifically the implied term of mutual trust and confidence because her contract did not permit the respondent to unilaterally demote her, change her job role, or deprive her of accrued seniority without proper and fair process, or without genuine justification. The transfer was not by agreement, and was a direct result of the respondents’ actions in response to alleged relationship breakdowns, which the independent review did not attribute to the claimant.[19]The claimant argues that the issue of loss is not determinative at this stage; and in any event the respondents’ assertion that no loss was suffered is incorrect. The claimant states that she has suffered significant loss of seniority, status, and career progression, and ultimately, loss of employment. Any argument as to quantum of loss is a matter for the substantive hearing, not for summary disposal. In any event, breach of contract can give rise to declarations and remedies beyond pure financial loss. The respondents’ argument that because the claimant “signed” the contract, she cannot allege breach is an over-simplification of the law and the facts. The doctrine of economic duress, lack of genuine consent, and the reality of the employment relationship all militate against a finding of waiver or acquiescence. Furthermore, the respondents cannot assert that the claimant’s agreement was voluntary while simultaneously recognising that she had no alternative if she wished to remain employed in the Falkland Islands. The Tribunal is entitled to consider the true circumstances and context of the alleged variation, not simply the existence of a signature. raises triable issues that must be determine at a full hearing.Relevant law
[20]Rule 38(1)(a) of the Employment Tribunals Rules of Procedure 2024 states that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on the grounds that the claim has no reasonable prospects of success.[21]Under rule 40 of the 2013 Rules, where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospects of success, it may make an order requiring the party to pay a deposit as a condition of continuing to advance that allegation or argument[22]There is a long line of authorities which confirm that the threshold required to support a strike out on the grounds that there is no reasonable prospect of success is a high one; it would be rare to strike out a claim where the evidence is dispute; and the claimant’s claim would be taken at its highest in any assessment (See Wangtian Xie v E’Quipe Japan Ltd 2024 EAT 176 for a recent example).[23]Even if it is established that the claim has no reasonable prospects of success, a Tribunal must go on to decide whether to exercise its discretion to order strike out, having regard to the overriding objective to deal with cases fairly and justly. This requirement for a two- stage analysis was confirmed in Hasan v Tesco Stores Ltd EAT/0098/16.[24]In Mallon v AECOM Ltd 2021 ICR 1151, HHJ Tayler stated that it was important before applying for a strike-out order to consider the proportionality of doing so, including the likelihood that it would result in a saving of expense and avoid delay. Applications to strike out on the basis that there is no reasonable prospect of success should only be made in the most obvious and plain cases. Deliberations and decision[25]In this case the respondents’ strike out application extends only to the claimant’s breach of contract case.[26]Based on the above written submissions, it is clear that there is a dispute about the facts, for example in regard to whether the claimant was working under protest or simply that transfer was not her preferred choice. The claimant will rely on documentary evidence to support her position.[27]There are questions to be answered about whether any conduct was a breach of the implied term of trust and confidence. There are then further questions about whether the claimant suffered losses as a consequence of any breach, and whether losses would be payable separately or accounted for in the unfair dismissal claim should that succeed.[28]I take account of the high threshold for striking out claims, even of breach of contract, especially where there are disputed facts, and I could not say that this was one of the most obvious and plain cases warranting strike out at this stage. I consider that it is necessary to hear oral evidence before coming to any conclusion on these points.[29]Even if it could be said that the breach of contract claim has no reasonable prospects of success, the Tribunal still requires to move to the next stage which to consider this Tribunal should exercise its discretion to strike out the claim.[30]In this case, the breach of contract claim is one of a number of claims which the tribunal will require to decide, including unfair dismissal and discrimination. It seems to me that the facts associated with this claim are likely to form part of the evidence relating to those claims which will be heard at a final hearing which is to take place over 12 days. Even if they are not, then the additional time required to hear such facts will be limited. The additional time to address the matter in submissions will also be limited. Any decision to strike out this claim would therefore, in my view, be disproportionate, saving limited time and expense. Accordingly the respondent’s application for strike out is refused. 31.[32]The considerations which I have applied to the strike out application apply equally to any application for a deposit order, so that it could not be said, that this stage without hearing evidence, that the claim has little reasonable prospects of success.[33]The respondents’ applications are therefore refused.[34]This case will proceed to the final hearing which is due to commence on 12 October 2026.