Prospects of success
Thorpe v Eaton Electrical Limited, 6 December 2004
Thorpe brought a claim for constructive dismissal, alleging that his employer had breached the terms of his contract relating to salary review and bonus entitlement. Thorpe failed to prove that there had been a fundamental breach of his contract, and the tribunal found in the employer’s favour.
Thorpe appealed to the Employment Appeal Tribunal (EAT). At the outset, the EAT made it clear that the tribunal had made no error of law, so Thorpe’s appeal had to be made on the basis that the tribunal’s decision had been “perverse”, which is acknowledged to be a difficult standard of proof to meet. Thorpe’s case was not particularly strong and his appeal was ultimately dismissed.
The employer sought to recover its costs from Thorpe, arguing that he should not have pursued it to the EAT.
The EAT rejected the application. Thorpe’s case had not been particularly strong, but the ambiguity in some of the wording used in the ET3 response form meant that the employer’s case was not clear cut, and therefore did not quite fall into the category of cases with “no realistic prospect of success”.
The EAT said that “no realistic prospects of success” means that “a case is so poor that the other side does not even have to get up on their feet” (to respond to the points raised). When they fall within this category, the litigant should abandon their case, and not regard it as a free opportunity to have their day in court.