CA-2025-000379 - [2025] EWCA Civ 1357

The Claimant’s dismissal. From December 2019 the Claimant, who is the Respondent in this appeal, worked for an estate agency and property management business in Hertford. There appear to be (at least) three companies connected with that business – Abel of Hertford Ltd, Abel Estate Agent Ltd and Abel Living Ltd – together, “the Abel companies”. The Claimant was dismissed on 6 April 2023, ostensibly for redundancy.

The complaint. On 12 April 2023 – that is, six days after her dismissal – the Claimant commenced proceedings in the ET claiming:

The respondents to the complaint. Because she was uncertain about which of the Abel companies was her employer, the Claimant named all three as respondents in respect of both claims. She also named three individuals, Ami Hayward, Charles Court and Lucinda Casey, who were all involved in the management of Abel. Those individuals could not be liable for the unfair dismissal claim because such a claim can only be brought against an employer; but if they had participated in the decision to dismiss they could be liable under section 47B (1A) of the ERA for subjecting her to the detriment of dismissal (see Timis v Osipov [2018] EWCA Civ 2321, [2019] ICR 655). I will refer to the six respondents as “the Appellants”, as they are before us: the Abel companies are the First to Third Appellants and the individuals the Fourth to Sixth.

The interim relief application. Section 128 of the ERA entitles a claimant bringing a claim of unfair dismissal under section 103A to make an application for interim relief. The application must be made within seven days of the effective date of termination of their employment. The Claimant included an application for interim relief on her claim form. The application was heard by Employment Judge Crosfill on 30 May 2023. None of the Appellants attended and the application was granted. (At the case management hearing referred to below the order was set aside, but that is immaterial for our purposes.) A claimant making an application for interim relief is exempt from the requirement to supply an ECN in respect of their unfair dismissal claim (“the interim relief exemption”). The reason for the exemption evidently is that the time limit for seeking interim relief would not allow time for a conciliation process to occur.

The ECN objection. The case then proceeded as normal, and a case management hearing was held before Judge Crosfill at the East London Hearing Centre on 20 September 2023. The Claimant was unrepresented and the Appellants were represented by Mr Gerard Airey of Kilgannon & Partners (who remain their solicitors on this appeal). Mr Airey objected that the Claimant had not given an ECN on her claim form: so far as the unfair dismissal claim was concerned, she was covered by the interim relief exemption, but that did not apply to the detriment claim, which he submitted should accordingly be rejected.

The ET decision. The Judge accepted Mr Airey’s submission that the detriment claim should have been rejected because of the omission of the ECN, and a belated notice of rejection was issuedon the day of the hearing. However, he granted the Claimant permission to amend the claim form so as to add the individual Appellants as respondents, which had the effect of curing her failure to engage in the early conciliation process in relation to the detriment claim. His reasons (which had also to deal with a number of other issues) are contained in a clear and careful Case Management Summary promulgated on 10 November 2023.

The decision of the EAT. The Appellants appealed to the EAT. The appeal was heard by Swift J, sitting alone, on 12 December 2024. The Appellants were represented by Mr Gus Baker of counsel. The Claimant was not represented and did not appear. Swift J nevertheless perceived that the case raised difficult issues and reserved his decision. By a judgment handed down on 20 January 2025 he dismissed the appeal, but on the basis of different reasoning from the ET. In short, he held that it was too late for the detriment claim to be rejected: it could in principle be struck out as a matter of case management for non-compliance with the Rules, but that was not justified in the circumstances of the case.

The appeal. The Appellants appeal against the order of the EAT, with the permission of Swift J himself, who recognised that his decision was contrary to other EAT authority and a dictum of this Court (I give details below). Although the Claimant argues that Swift J’s decision was correct for the reasons that he gave, we gave her permission to file a Respondent’s Notice out of time seeking to rely in the alternative on the ET’s original reasoning.

The hearing before us. Before us the Appellants have again been represented by Mr Baker, together with Ms Jessica Franklin. The Claimant has benefited from pro bono representation by Mr William Young and Mr Chevan Ilangaratne. The Court is grateful both to them and to Advocate who acted promptly to secure their services at short notice. The appeal raises points of law of some difficulty on which it was of real assistance to the Court to have submissions of high quality.