EAT (0588/07)

Key Facts

The EAT held that in a case where the mental capacity of a Claimant was in doubt the Employment Judge could not appoint the Official Solicitor to investiagte his capacity or to appoint a litigation friend (as could be done in the ordinary Courts under the Civil Procedure Rules). The only power open to a Tribunal in such a case was the general case management powers including strike out of all or part of a claim if it was believed to be misconceived or have no reasonable prospect of success.

The Claimant had worked as a kitchen porter in one of the Respondent’s London hotels until his dismissal. He brought an unfair dismissal claim before an Employment Tribunal alleging that the dismissal had been procured by Jehovah witnesses and his ET1 contained these allegations. His claim to the Tribunal also contained the allegation that Jehovah witnesses had secretly video recorded him and had showed such recordings to the Prime Minister at the time, Tony Blair. He also alleged that the Jehovah witnesses had falsely imprisoned him in a psychiatric hospital.

The Respondent argued that the claim should be struck out. The Employment Judge in the original Tribunal refused to strike out the Claimant’s claim but took the employer’s alternative argument that if it would not strike out then the Official Solicitor should be invited to investigate the Claimant’s mental capacity to litigate. The proceedings were subsequently stayed until the conclusion of that inquiry. There was an appeal then to the EAT. The EAT looked at the Civil Procedure Rules and the Employment Tribunal Regulations for procedure and decided that there was no power for the Tribunal to invite the Official Solicitor to make such an inquiry.

Comment

It would appear that an Employment Judge, when faced with a question of whether or not the Claimant has a mental capacity to litigate (and this is evident from the allegations made by the Claimant) will only have the power to rule the claim to be misconceived and/or struck out as having no reasonable prospect of success. 

Where the Claimant does appear on paper to have a viable case on its merits, the Judges should use their case management powers to balance the interest of the parties to make sure that one is not at a disadvantage. It may be the case however that a party who is affected by a particularly serious mental illness may be unable to conduct proceedings properly and if the case becomes unmanageable as a result, it would also have to be struck out.

The case is largely positive for employers. From an objective legal point of view, it is a harsh decision, as it would suggest that where the party’s ability to litigate is impaired through no fault of his or her own, and that party has a potentially meritorious case, then strike out may be possible and in such circumstances the party whose case is struck out may also be ordered to pay the other party’s costs. In litigation different Judges will have different views on what constitutes obviously misconceived or unmanageable case and it has been suggested that this gap in the Tribunal Rules should be addressed by Parliament in the future.