Unduly technical

The Employment Appeal Tribunal (EAT) has held in Aynge v Trickett t/a Sully Club Restaurant that when a claimant is unrepresented, tribunals should not take an unduly technical approach, particularly in a case where the claimant was unlikely to know the difference between an actual and a constructive dismissal.

Basic facts

Ms Aynge worked in a pub/restaurant owned by her parents but run by Mr Trickett as the licensee from 1 September 2016. Following a row between them on 15 October 2016 and a further interaction the following day, she submitted an ET1 form (her tribunal application form) stating that he dismissed her by telling her “this is your last shift tonight” and “that’s it we’re done”. When she returned the next day to collect her wages, she said that he told her that he would have got rid of her during his first week running the business if it hadn’t been for her parents.

However, in her subsequent witness statement she claimed that she had gone back into the kitchen on 15 October to clarify what Mr Trickett meant about that evening being her last shift. She then stated that he told her that he would not allow her to work a “night shift again”. She told him that that was unreasonable and left the premises. She also alleged in the witness statement that when she returned the next day, Mr Trickett had confirmed that she was “finished”.

Mr Trickett argued that it was clear from her witness statement that she accepted that she had not, in fact, been dismissed on 15 October contrary to the claim in her ET1. As she had expressly relied on a claim of being dismissed on that date, he argued that her claim must fail.

Tribunal decision

The judge accepted that, from Ms Aynge’s account of events, it was possible to find that there had been a constructive dismissal on 15 October or an express dismissal on 16 October.

However, because the judge decided that the only argument set out in her ET1 was that she was dismissed on 15 October and because Ms Aynge accepted in her witness statement that she had not been dismissed on that date, he rejected her claim without hearing any further evidence.

EAT decision

The EAT, however, upheld her appeal on the basis that the judge had adopted “an unduly technical approach” and had not taken enough account of the fact that Ms Aynge was representing herself.

Whatever Mr Trickett was alleged to have said on the evening of 15 October, it could be argued that the initial words “This is your last shift tonight. That’s it, you’re done” could be construed as a dismissal, regardless of any later statement, or it could have been argued that the subsequent occasion when Mr Trickett told her “to get out” could have been an express dismissal. As Ms Aynge was a litigant in person, she could not be expected to understand the significance of these legal niceties.

Nor was it fair to say that the ET1 had been written in such a way that Ms Aynge could not rely on either a constructive dismissal on 15 October or an actual or constructive dismissal on 16 October. This was essentially an argument in a pub over two days to which the judge needed to apply a common-sense analysis.

In any event, the EAT held that even if the judge was right that the ET1 could not be interpreted as involving a constructive dismissal on 15 October or an actual dismissal on 16 October, he should at least have considered allowing Ms Aynge to amend her ET1 to include such claims.

The EAT therefore remitted the case back to a different employment judge.