Russell Holland from No5 Chambers has appeared for the appellant in Nabili v Norfolk Community Health and Care NHS Trust UKEAT/0437/13/DM.
The claimant’s claim had been struck out but the employer had admitted that there had been procedural flaws. The employment tribunal judge concluded that the procedural flaw would have made no difference to the outcome of the claimant being dismissed.
The Employment Appeal Tribunal (EAT) found that this was an error of law and that the judge should have asked whether or not the dismissal was fair in all the circumstances, leaving the question of whether or not it would have made any difference to be considered as part of any remedy.
According to No5, this is quite a fact-specific situation dealing with the approach in a strike-out application where there is an admitted procedural flaw. If representing the employer at a strike-out application and a procedural flaw is admitted, care must be taken not to make submissions in such a way that may result in a judge making a similar mistake, and this is a useful authority for specifically identifying the correct approach to take. For those representing employees, with procedural flaws admitted, this case may be useful in resisting a strike-out application.