The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Rules) contains the rules on strike out. Rule 37(1) says that a tribunal can strike out all or part of a claim (ET1) or response (ET3) at any stage of the proceedings, of its own accord or following an application by either party, if:
- It is scandalous or vexatious or has no reasonable prospects of success.
- The way the proceedings have been conducted – by the claimant or respondent or their representatives – has been scandalous, unreasonable or vexatious.
- The claimant or respondent has not complied with the tribunal rules or an order of the tribunal.
- The claim or response has not been actively pursued.
- It is no longer possible to have a fair hearing.
There is a lot of overlap between these reasons for strike out. It may not be possible to have a fair hearing if one party has conducted proceedings in a vexatious way. Similarly, a party may conduct proceedings unreasonably precisely because they are failing to comply with tribunal orders. The EAT has recently looked at strike out in practice, in relation to an employer’s response to a claim.
In Emuemukoro v Croma Vigilant, the employer had not complied with tribunal orders in relation to witness statements and the hearing bundle did not contain all relevant documents. The employment judge struck out the response on the first day of a five-day hearing, saying that a fair trial was no longer possible within that trial window. The judge said the lesser sanction of an adjournment would prejudice the employee. The employer appealed to the EAT saying strike out should only happen if a fair hearing would never be possible, rather than simply not possible within the relevant trial window.
The EAT agreed with the employment tribunal. They said it wasn’t necessary for a fair hearing to not be possible at all. It was enough to justify strike out that a fair trial was not possible in the scheduled trial window due to the party’s conduct. The tribunal was right to consider the delay and hardship already experienced by the employee, and any more delay would not be in the interests of justice. The EAT said that in this case the less drastic response was the strike out.
This case shows the importance of sticking to tribunal orders and ensuring that cases are prepared properly in advance of any hearing. It is tempting to think that tribunal orders are flexible, perhaps because parties often agree short extensions of time between themselves, often without telling the tribunal. This case is an extreme one – few employers will show up to a tribunal hearing without having done their homework. Whichever side of the fence you sit on, the message here is to take all tribunal orders, and the overarching tribunal process more generally, seriously. Failure to do so may result in the tribunal striking out a claim or response and rendering one party a bystander in proceedings with no material influence over the final outcome. Employers can take advantage of strike out powers if an employee falls foul of the rules but must also ensure that their own house is in order.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539