How to apply for a strike out order in the Employment Tribunal
When to apply for a strike out order in the Employment Tribunal
How not to apply for strike out order in the Employment Tribunal
In a period of 8 days in November 2021 the employment appeal tribunal published 4 cases on striking out claims or defences in the employment tribunal. This is a long article. It should be useful for those thinking about making a strike out application or for those on the receiving end of one. It also contains some general comments about how to deal with employment tribunal claims. Decisions to strike out claims or defences should be exceptional and so 4 appeals in 8 days is ‘striking’.
The cases are as follows:
The power to strike out should rarely be used by employment judges. It may be that the pressure on tribunal judges over delays and underfunding is taking its toll because they are using that power more than normal. These cases, however, show that they are getting it wrong. The power to strike out is found in rule 37 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013:
(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospects of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules … (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.
Note that there are 5 possible reasons in 37(1) (a) to 37(1) (e) for which a strike out order can be made. To strike out under one or more of these 5 rules an employment judge needs to operate a two-stage process:
a) Consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established (first stage) and then;
b) Having identified any established ground(s), the tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the rule (second stage).
The second stage means, for example, that if there is something less drastic that can be done instead of striking out than that approach should be used. This two-stage approach was the subject of an EAT case called Hasan v Tesco Stores Ltd UKEAT/0098/16. In that case the employment judge carried out the first stage but then stopped and made the striking out order. At the second stage it is important to consider matters such as how long is it before the final hearing and whether some other order could be made, such as a requirement to provide further and better particulars. Striking out is draconian as the other side in effect automatically wins. The decisions show just how wrong some employment judges can be. For example, in one of them the employment judge simply failed to follow the basic rules governing such applications. Employment tribunal advocates can learn from all of these cases.
In the Xia v Tag Europe case the dismissed employee (called the Claimant) had made lots of claims in what seems to have been a long homemade application. Some of the claims weren’t even ones that a tribunal could deal with, but the main ones were discrimination and unfair dismissal. The Claimant relied on a series of tape recordings she had made of her colleagues allegedly discriminating against her. She had provided a transcript of the recordings but the Employment Judge, having listened to an hour or so of the recordings, found that they didn’t bear any resemblance to the transcript and didn’t help the Claimant’s case anyway. There were other things that the Claimant had done wrong. The Employment Judge struck out the Claimant’s claims. The Claimant appealed and the appeal court decided that the original Employment Judge made a mistake to ‘lump’ all the Claimant’s claims together when deciding to strike them all out.
Striking out means dismissing them entirely without hearing the evidence and going through the rest of the case. In Xia, the employment judge seems to have relied on Rule 37(1) (a) and (b) as, at least, that is what the judgement referred to. The EAT also noted that the Employment Judge “set out a three-fold test required by well-established authority for a strike out based on rule 37(1)(b) at para 18 of its reasons. The steps are; (i) was the conduct scandalous, unreasonable or vexatious? (ii) is the result of that conduct that there could not be a fair trial? and (iii) is strike out proportionate”? In this case the employment judge looked at the transcript and listened to the tape, considered the false allegations made by the Claimant and decided that the three tests above were such that he could strike out the Claimant’s discrimination claims. He described some of the allegations as ‘obscene’. However, having done so in respect of the Claimant’s discrimination claims, he decided to apply the same test to all the other claims and thus struck out her unfair dismissal claim. The judge did this without apparently considering it as a separate claim. At the very least, it cannot be characterised as “obscene” to make an allegation that one had been unfairly dismissed.
The employment tribunal should, in fact, have considered the claims separately and did not appear to have done so. The point was made that as the unfair dismissal burden of proof is on the dismissing company, any lack of credibility on the part of a claimant would not necessarily be fatal to such a claim. This is because, in theory, a claimant can win an unfair dismissal case without giving any evidence at all as the burden of proof falls on the employer. The Claimant in Xia bore the burden of proof in respect of discrimination and, after her behaviour with the transcript and other issues, the judge held that she had no credibility left such that her claim should be struck out. However, having decided that this was the case the tribunal simply struck out all her claims including the unfair dismissal one. As her lack of credibility didn’t affect the unfair dismissal claim because of the burden of proof point, the EAT sent that claim only back to a different employment tribunal to be considered.
The ‘learning’ in this case is about case management for advocates. You can’t rely on Employment Judges to make the correct decisions or even all the decisions they have to make. We had one in Devon where he had 4 decisions to make and only made 1. Literally, he had to say something about 4 different things but only mentioned 1 and that was factually wrong anyway. His failures included a failure to even remember that there was a contract claim before him. Luckily, the mistakes were in our client’s favour, so we didn’t enlighten him. It is your job to politely point out the law to the judge and to steer him or her to only make the decision you want on the correct grounds. You can, of course, go too far in pointing out the law. In 1990 this writer found himself in the Exeter tribunal explaining Western Excavating to the employment judge. That judge, called a chairman in those days, kindly and gently explained that it wasn’t necessary to explain that case to the tribunal as it was well aware of it ‘particularly as it started in this very room’.
In Xia, albeit we say this with hindsight, the tribunal should have been told to decide whether to strike out the claims separately. The EAT would have had a harder time overturning individual strike out decisions, particularly when all of them were lumped together following the main decision on discrimination. A good list of issues should have helped by listing all the strike out requests separately. In the ‘olden days’ when decisions were made on the spot in the hearing you could ensure that the Employment Judge decided all the things that he or she was supposed to by reminding them and asking for clarification immediately. We have, for example, politely asked a judge to make a decision on such and such. Now, with reserved (postponed) judgements far more common, you can’t do that on the day, but it will still be sensible to ask the judge to ensure that a decision is made on all the issues separately. If they don’t decide the issues separately then, even if you have won, consider asking for reconsideration of the judgement if only, as in Xia, to ensure that a proper decision has been made on all the issues. In fact, bookmark this article with the ‘rule’ if ever you are asking for a strike out prepare a crib sheet to ensure that the judge gets the decision right. It is better and cheaper for your client to win substantively than to win procedurally, lose in the EAT and then have to do the case all over again and this time against better prepared opposition.
In the second EAT case we mention in this article, Emuemukoro v Croma Vigilant (Scotland) Ltd, a different EAT considered what the question ‘could there be a fair trial’ meant (being the s37(1)(e) strike out claim question). In that case, the Respondent company’s entire defence was struck out on the first day of a 5-day hearing due to the complete failure by it to comply with all case management orders. The Respondent was represented by Peninsula Business Services who put their hands up to that complete failure and, as the Employment Judge pointed out, thereby handed their client a strong negligence claim. The Respondent’s argument in the EAT was that the test for strike out should be limited to a fair trial is not possible at all which was rejected in favour of the test being a fair trial not possible in the window available: being the 5 days set down. This is the only one of the 4 cases where the employment judge got things right even though we think that the employment tribunal should not have allowed the matter to get to the 1st day of a 5-day hearing when the Respondent hadn’t complied with many of the tribunal’s orders.
This case is authority for the proposition that a claim or response can be struck out at the start of the hearing if the party at fault’s actions mean no fair trial is possible within the days scheduled for the hearing even if it could have been possible later. The Respondent Company in this case turned up to the first day without having prepared witness statements. It had prepared a bundle, but it was hopeless as it didn’t contain most of the relevant documents. There had, of course, been lots of case management orders that the Respondent had failed to comply with.
The EAT relied in part on the authority case of Blockbuster v James. In passing, what the lawyers call ‘obiter’ the EAT also said that another rule for striking out set out in the Blockbuster case, namely deliberate and persistent disregard of the required case management orders, should be interpreted as meaning that ‘deliberate’ probably excluded oversight or negligence. The EAT had also to decide whether the original Tribunal, in striking out the defence, had acted in a proportionate way. It could have adjourned the case or struck out the defence. It chose to strike out the defence. The EAT held that in any given case the proportionate response is the ‘less drastic’ one, which in this case, was to strike out the defence, rather than adjourn. In deciding that not adjourning was more drastic than striking out the defence the original tribunal had considered that it was almost two years prior since the Claimants had lost their jobs and to adjourn would have added to that delay. This is a point that arises from the current huge delays in tribunals: in the days when hearings came on in 3 months or so the less drastic option would have been to postpone.
The learning in this case for an experienced employment tribunal advocate, apart from the obvious one of don’t ignore tribunal orders, is when to make your strike out application. In this case, again with hindsight learning, it was best to make the application on the first day of the hearing even though that would have incurred barrister’s fees and other preparation costs. Making it earlier, as some advocates do the moment there is a failure to comply with a case management order, would a) have given the Respondent time to comply with the orders and b) would not have had the strength of making it on the 1st day of a 5-day hearing. It is also likely that if an earlier application had been made to strike out then, at that time, the least drastic proportionate response would have been to make an unless order and leave the 5-day listing in place.
We note that some Employment Judges order that the parties write to the tribunal a week or two before the scheduled hearing to confirm all case management orders have been complied with. Such an order may prevent a ‘first morning’ application such as in Emuemukoro and thus a tribunal sitting idle for the wasted days and, in that case, avoided an EAT hearing. This case is illustrative of a tribunal that did not do this and thus allowed the parties to attend the first day of a 5-day hearing without the orders being complied with. It should be a standing tribunal case management order that parties’ representatives write to the tribunal 2 weeks or 1 month before any final hearing to confirm compliance with the orders.
The 3rd EAT decision in this article is the Collins v Ultimate Finance case. In that case the Claimant failed to provide a Schedule of Loss on time because of personal issues involving illness and the sad death of the representative’s father. The regional Employment Judge in that case made a case management order that the Schedule be provided ‘by return’ without specifying what that phrase meant. This was sent by email dated 25th October 2019. At that point the schedule was about a month overdue. The schedule still wasn’t provided, and the other side applied for a strike out order. Employment Judge Harper, who has since retired, was one of the more experienced Employment Judges and heard this application. He decided to strike out the entire claim. The EAT reversed this decision in what is a blunt and short denunciation of his decision. It turned out that the schedule had been provided by that time, but the employment judge didn’t know this. In any event, as will be explained in the next paragraph, striking out a claim or defence, as in Collins, before giving the affected party a chance to make representations is strictly against the rules. The law on striking out is found in Rule 37 (as above). Rule 37(2) requires a party (1) to be told that a strike-out order is in contemplation, and (2) to be invited and given an opportunity to make representations on that subject in writing or if requested at a hearing. This is the ‘learning’ for those applying for a strike out order: there must be hearing if the party wants one, so ask for one and then immediately ensure you have complied with the order. Applying immediately for a strike out order, as some inexperienced employment lawyers do at the first opportunity and at their client’s expense, is a waste of money.
In Collins the EAT held that the Claimant had not been told that the striking-out was being contemplated and was not given an opportunity to make submissions. Thus, the judge acted in breach of rule 37(2). It was noted that at the time of the strike out order the final hearing of the claim was not imminent and there was about to be a preliminary hearing at which the problem could have been addressed. As we said, there was also another point that Employment Judge Harper, when making his decision, had been given the mistaken impression that the schedule had still not been provided. The Respondent in this case argued that the 25th October ‘by return’ email equated to the provision of a reasonable opportunity to make representations but clearly it does not. The Regional Employment Judge’s order was appropriate but ‘by return’ is not particularly clear. It was Employment Judge Harper’s strike out decision that the EAT had a problem with as it was not necessary for the reasons given by the EAT and was made before the Claimant had had a chance to ‘make submissions’ as required by Rule 37(2). We think that the Regional Employment judge’s order could have been to invite written submissions as to why the Tribunal should not consider, in 14 days’ time, why the claim should not be struck out ‘unless’ the schedule or a reasonable explanation had been provided before then.
The fourth case was the last published. It is called Niedzielska v Faccenda Foods. In this case the Claimant had been off sick for some time with pain in her feet and other medical issues. She was dismissed in April 2009 at a point when occupational health had said she would not be able to return for 6 months. Her application, like Ms Xia’s, was ‘homemade’ but did its job of making it clear that she was claiming unfair dismissal and discrimination arising from disability. The employment tribunal also considered that she was perhaps making a claim for failure to make reasonable adjustments in respect of her disability. A hint for claimants bringing disability discrimination claims is always to consider bringing such a claim as there is generally some adjustment or other that the respondent company should have done and did not.
The Respondent company in this case worked out what it thought the Claimant was claiming in her claim and put in a defence to certain specific claims. It also asked her to provide ‘further and better particulars’. The EAT said that expecting a litigant in person who has limited English to “provide further and better particulars of the specific heads of claim she is relying upon is perhaps a little optimistic” and criticised the employment judge for not getting to grips with what the claims in the application actually were. The employment judge then scheduled a striking out hearing even before the further and better particulars had even been provided. The Claimant did write a letter providing some further explanation of her claim but did not particularly address the Respondent’s questions. Her response seems only to have complained about the safety footwear that the respondent had issued, and which apparently was not up to the job.
This case is also one characterised by the employment tribunal getting ‘things’ wrong. It meant that the Claimant had to go to the EAT to get her case back on track. The result of the successful appeal by the Claimant was that she was back where she should have been in the first place - preparing for a tribunal hearing. The judgement made by the employment judge at the striking out hearing was characterised by errors. Firstly, as the employment judge had not got to grips with the claims being made, she didn’t identify that the Claimant was making a section 15 of the Equality Act 2010 claim. This seems to be the claim of something arising in consequence of disability. It seems clear from the limited explanation in the original claim form that this was exactly what the Claimant was claiming. Furthermore, that she was claiming this was not affected by her not answering the question about it asked by the Respondent. As the employment appeal tribunal said ‘while the Claimant did not answer the question asked, she did not explicitly state, or imply, that she was not bringing a claim of discrimination because of something arising in consequence of disability.
However, the employment judge seemed only to rely on the further particulars provided by the Claimant, and they only mentioned the unsuitable footwear. As such, the only claim she decided the Claimant was bringing was one of ‘failure to make reasonable adjustments’. The EAT, in the form of Mr Justice Tayler, decided that this was an error of law by the employment judge as she had not followed the guidance that he had given in an earlier case called Cox v Adecco. That guidance was not to rely too much on how any explanation given by an unrepresented person in any preliminary hearing but to pay more attention to the actual claim form. In fact, the first line of Mr Justice Tayler’s summary of that case is a thing of beauty in itself: “you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is”. The judgement then goes on to provide the guidance about dealing with unrepresented claimants and how the employment judge should approach working out what the claims actually are.
When considering whether to strike out a claim on the grounds of ‘no reasonable prospect of success’ the employment judge should give the highest weight to whatever the Claimant is saying. This could involve asking the question will this claim stand a chance of success if the respondent, for example, doesn’t give any evidence to contradict it. That is what ‘taking the Claimant’s case at its highest’ means. It is a simple test characterised by statements such as ‘could the Claimant win’ and not ‘will the Claimant win’: there must be no reasonable prospects of success so any chance whatsoever will defeat the application. In this case the employment judge actually directed herself correctly as to the law but then, as the EAT found, didn’t apply it. Instead, she conducted a mini trial of the matter to decide the merits. For example, she considered the Respondent’s claim that all employees had difficulty with the footwear and in so doing decided that the fact that the Claimant had been provided with the same bad footwear as everyone else meant that she could not have been discriminated against on grounds of disability. In so doing the employment judge did not consider that the Claimant’s medical conditions might have put her at a greater disadvantage than other employees with the same footwear. There was another wrong decision of a similar nature and having made such decisions the employment judge decided to ‘strike out’ the Claimant’s disability and unfair dismissal case.
One particularly bad decision by the employment judge was to rely on the case of Polkey in respect of the fairness of the Claimant’s dismissal. Polkey refers to the case of Polkey v A E Dayton Services Limited  IRLR 503. In that case the House of Lords overturned the earlier Court of Appeal decision in British Labour Pump Co Ltd v Byrne  ICR 347 IRLR 94. Polkey should be simple – unfairness in procedure is unfair and you can’t decide something is fair on the basis that that unfairness didn’t make a difference. In other words, if there is unfairness in the process leading up to dismissal it should be considered as part of the decision as to whether the dismissal was unfair. Prior to Polkey, tribunals could ignore unfairness to decide, for example, that if the employee could have been fairly dismissed the dismissal could be found to be fair regardless of the unfair process. That was held to be wrong by the House of Lords in Polkey which decided that the question of whether the dismissal could have happened fairly if the unfair procedure didn’t happen should be considered only at the remedy stage. Employment Judges get Polkey decisions wrong all the time, for example, Pinewood Repro Ltd T/A County Print V Page UKEAT/0028/10/SM. In the Niedzielska case the employment judge applied Polkey to the question of whether the dismissal was fair when clearly it has no place in that consideration. Her decision on that point was
“In any event, if I am incorrect in concluding that it was reasonable for the Respondent to conclude that the Claimant was incapable of carrying out her role (or any reasonable alternative), I consider that applying the case of Polkey v AE Dayton Services Ltd (1987) UKHL 8, it made no difference to the final outcome.”
This is a hopelessly wrong and extraordinary application of the law. Thus, the EAT decided to overturn the strike out decisions and the Claimant was, therefore, allowed to continue with her claims albeit in front of a different tribunal. The Respondent had presumably paid its lawyers for the strike out application and for the EAT hearing and was no further forward – in fact it was back to square one.
The learning in these cases for the experienced employment tribunal advocate is, amongst other things, a) comply with orders, b) keep the other side informed if you can’t c) don’t apply for a strike out order at the first available opportunity, d) when the other side apply for one insist on a hearing, as that will give you plenty of time to comply with the order beforehand and e) rely on the Collins case for a reconsideration request if ever an Employment Judge decides to strike out without giving you a chance to make representations.
Furthermore, we have all been on the receiving end of claims that are badly set out, don’t make sense and/or don’t identify the relevant claims. The ‘least cost’ approach is to put in a defence on time dealing with what you can and ask for a preliminary hearing to clarify what the issues are. Some firms of solicitors have no idea what the ‘overriding objective’ entails and embark on huge letter writing exercises demanding complicated further and better particulars, answers to questions, clarifications and such like. A Claimant solicitor will fight off these attempts to run up costs.
When acting for companies a tactic when defending unspecified and vague claims is to ask the employment judge to order that the witness statement exchange be staggered such that you get the Claimant’s statement first and can deal with the allegations later in your client’s witness statement. That way your client knows the case it has to meet, and you have saved costs and complied with the overriding objective. Another thing to note, as above, is that it is almost always better and cheaper for your client to win substantively in the final hearing than to win procedurally at the substantial risk of losing in the EAT and having to start again. The trick is to get to the substantive hearing without running up significant costs.
Many of us will have been on the end of arguments from clients that they want you to apply to strike out the other side because they haven’t complied with an order. However, applications made too early and wrongly only benefit the lawyers who run up costs for their client.
Finally, don’t be frightened of setting out the relevant Rule and the law in any letter to a tribunal. When doing so always make your applications for orders short, 1 page at most. Tribunal judges are busy and on ‘paper days’ they have many decisions to make and won’t thank you if they are three pages into a long letter and none the wiser as to what you are asking for:
We act for..
This letter asks for …
Rule such and applies :
The law is ..
We ask for this order because this has happened or not happened
The Overriding objective is met because ..
One final note, while we are on our soapbox. A particular bugbear is the way that applications and lists of issues in discrimination claims don’t deal with the need to satisfy both the requirement for an unlawful mode of discrimination (such as s.13 or s.18) and for a proscribed circumstance that was the subject of that unlawful mode of discrimination (such as s.39(c)). A properly pleaded ET1 will deal with both and will set out exactly what the claims are. In one recent preliminary hearing, when acting on behalf of a discrimination claimant, the other side’s request for further and better particulars was firmly rebuffed by quite a grumpy employment judge with the words – the claim is properly pleaded as the claims you have to meet are carefully set out. That is what you are trying to achieve with the claim or the defence: it’s not a witness statement and doesn’t have to be long. As such it should be closer to a list of issues than anything else.