EAT Practice and Procedure : Striking-Out/Dismissal
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant made a number of claims against his former employer. An Employment Judge decided to hold a Preliminary Hearing to consider a number of matters, including (at the Tribunal’s own initiative) consideration of striking out some of the claims.
At the Preliminary Hearing the Employment Judge decided to consider whether to strike out all of the claims, not just those that parties had been given notice would be considered for striking out. His decision was that none of the claims had any reasonable prospect of success and he struck them all out.
On appeal it was decided that, insofar as the Claimant, who was unrepresented and whose first language was not English, had no prior notice at all that two of the claims would be considered for striking out at hearing, the striking out of those was so tainted by procedural unfairness that the Judge’s ruling on those could not stand. Even had there not been such unfairness, the Judge’s decision so far as the discrimination claim was concerned was premature given that discrimination claims should not normally be struck out without enquiry.
Further, all of the striking out decisions had been made following consideration only of whether the test in Rule 37(1)(a) of the 2013 Regulations had been met. There had been a complete failure to address the necessary second stage of the exercise of discretion, identified as necessary in the case of HM Prison Service v Dolby [2003] IRLR 694 EAT. That failure amounted to a clear error of law. Appeal allowed.
Lady Wise
[2016] UKEAT 0098 – 16 – 2206
Bailii
England and Wales
Employment
Updated: 24 January 2022; Ref: scu.570379