Tribunal Procedure: Striking Out

This month there has been no less than 3 decisions in the EAT relating to when it is permissible for a Tribunal to strike out claims.  Strike out is the most draconian action a Tribunal can take and therefore is often a last resort and used sparingly.  The cases below show some of the different considerations that the Employment Tribunal should be applying when considering whether to strike out a claim.

  1. Mohammed v Guy’s & St Thomas’s NHS Foundation Trust

    In this case the Employment Appeal Tribunal (EAT) said it was an error of law to strike out the entire claim where only parts of it were not properly particularised.  

    In this case following a failure to provide further information relating to her claims, the original Tribunal Judge struck all her claims out.  The Judge in the case making plain that the fact that the Claimant was struggling to comply or understand the information required by the Tribunal was unfortunate, but that was part of the process.

    The Claimant subsequently appealed to the EAT and the EAT said the Judge was wrong.  The EAT said that the Judge should have struck out only the claims which were non-compliant and allowed other claims which were properly pleaded (such as harassment and reasonable adjustments in this case) to proceed.  The EAT said that the Judge had failed to consider that some parts of her claim were indeed capable of determination albeit others were not and striking them all out was an error of law.   
  2.  Contrast the above case with another decision in March by the EAT (Rogha v Zinc Media Group plc

    In this case the EAT took a different view on slightly different facts.  The EAT upheld an Employment Tribunal Judge’s Case Management Decision to make an Unless Order which required that unless there were further particulars of some of the Claimant’s claims, then non-compliance would mean that all claims would be struck out.

    Arguably the circumstances that differ from the above case were that the Tribunal had closely considered that there was an inter relationship between all the different claims.  There was an additional failure to provide a requested Remedy Statement that also applied to all of her claims and therefore overall the Tribunal was within its powers to decide that her failure to comply with the Order would likely jeopardise the final hearing, thereby justifying a strike out of all matters.

    The fine differences between the two cases leads some lawyers, let alone anyone in business, to scratch their heads.  It appears really the key difference was the very inter-related nature of the claims which meant that non provision of further information on some of the claims would likely prejudice the entire trial in the second case, whereas in the first case there was an error of law where certain claims had already been correctly pleaded.
  3. If that wasn’t enough, the EAT has also given a further decision on striking out in Kaul v Ministry of Justice and Ors

    In this case the Tribunal struck out the Claimant’s claims on the grounds that they had no reasonable prospective of success.  This is quite a high and difficult test for employers to meet but if an employer can show that on the facts as pleaded by the Claimant, there is no chance of a successful claim then the Tribunal may sometimes strike out the claim early on.   It is rare for such applications to succeed because at the early stage of proceedings where a strike out is considered, the evidence (bundles, witness statements, etc) has not been seen.  Most Judges want to see some of the evidence before they can say that the case has no such reasonable prospects of success, especially in more complicated claims and particularly discrimination claims.

    After the strike out the Claimant had appealed to the EAT.  She had originally made claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment and discrimination arising from disability.  She said that the Tribunal had erred in law and had not properly consideredthe fact that the strike out was premature.  They relied on Authorities that was suggested as above that decisions to strike out should be rare at such an early stage.

    In a robust decision the EAT here disagreed and said that the Tribunal’s decision to strike out was consistent with the Authorities.  It said that the need to be cautious with strike outs did not mean it was not permissible, in certain circumstances, to strike out.  It considered that it had enough undisputed facts in relation to the case to be able to say that the claims would fail at the final hearing.

    MILS clients are often keen to strike out cases (understandably) early on where they feel that there is little merit.  The above cases demonstrate the fine differences in law that can result in success or failure.  The last case also gives hope that, in some circumstances with the very weak cases, a strike out is still possible.