Unfair dismissal claim struck out because employee presented it before being dismissed

This case is a cautionary tale about timing in employment tribunal claims. The employee, a senior ER adviser, was affected by a restructuring that disestablished her role. She was offered a lower-graded role with pay protection, which she accepted under protest. Believing she had been unfairly dismissed, she presented a claim for unfair dismissal and a redundancy payment – but she did so while still employed.

The fundamental problem: no dismissal at the date of claim

The tribunal explained that both unfair dismissal and redundancy payment claims require a dismissal to have occurred. Since the employee was still working for the NHS trust when she lodged her claim, there was no dismissal. Even though she was later formally dismissed and immediately re-employed (to preserve continuity of service), that happened after the claim was presented. The claim was therefore struck out as having no reasonable prospects of success.

What could have been done differently

The employee could have waited until after her employment ended before bringing a claim. Alternatively, if she believed the imposition of new terms amounted to a constructive dismissal, she should have resigned and then claimed – but she continued working. The tribunal noted that the case of Hogg v Dover College did not apply because the employer had not unilaterally withdrawn her contract; it was a genuine redundancy situation with suitable alternative employment.

Why this matters

This case highlights a common pitfall for employees who feel they have been pushed out but remain in work. A tribunal cannot entertain a claim for unfair dismissal or a redundancy payment unless there has been a dismissal. Presenting a claim prematurely not only wastes time but can also lead to a costs application against the claimant. For anyone considering a claim, the key lesson is to ensure the dismissal has actually happened before issuing proceedings.