An employment tribunal had no power to dismiss a claim as without a reasonable prospect of success before it was begun to be heard. The power to regulate its own hearings did not include such a power, and the power to dismiss a claim as frivolous or vexatious, or for failure to comply with directions applied different standards, and gave differing protections. At the ‘no reasonable prospect of success’ level, the tribunal had powers to require a deposit and to give warnings as to liability for costs, but no more. The case management powers were procedural and gave no strike out jurisdiction.
Aldous LJ said: ‘The jurisdiction of the tribunal is governed by the Rules. They, when read, indicate that a strike-out can only happen at the preliminary stage or during the hearing of the case under rule 13(2) which entitles the tribunal to strike out any application on the grounds that it is scandalous, frivolous or vexatious. The standard set by that rule is that which was applied in Order 18, rule 19 of the Rules of the Supreme Court, namely that the application was bound to fail. The lesser standard of proof which is sought to be prayed in aid in this case [no reasonable prospect of success] is contrary to the expressed intention of the Rules. In my view, it would be odd to strike out a claim before completion of the applicants’ evidence because it appeared to have no reasonable chance of success, unless the Rules specifically so provided.’ and
‘To incorporate the powers given in Part 3.4 of the Civil Procedure Rules would, in my view, be contrary to the intention of the Employment Tribunal Rules. They were brought into existence in 1993, before the CPR was conceived. They set out a system for removing hopeless cases. Prior to the hearing the rules enable the tribunal to require a deposit and give a warning as to costs if a case has no reasonable prospect of success. At any time the case can be struck out if it is scandalous, frivolous or vexatious. By the time of the hearing, witness statements may have been exchanged, but the nature of a case does not change during the time immediately before the hearing to when it actually starts. If the tribunal had no power to strike out a case prior to the hearing because it had no reasonable prospect of success, absent express provision, it would appear to me to be contrary to the intention of the Rules that such a power should exist at the beginning of the hearing before evidence has been heard.’
Sir Christopher Slade said: ‘I would, for my part, accept that such jurisdiction may indeed be desirable in cases where the application is as a matter of law on any footing bound to fail. But at least in many such cases any such application will, by its very nature, be `vexatious’ within rule 13(2)(d) of the 1993 Rules, so that in such cases the jurisdiction to strike out will be conferred by that rule. Rule 13(2)(d) has not been invoked by the appellant on this appeal for obvious reasons.’
Judges:
Aldous LJ, Sir Christopher Slade
Citations:
Times 22-Nov-2000, Gazette 23-Nov-2000, [2001] IRLR 85
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Balamoody v United Kingdom Central Council for Nursing CA 14-May-2001
The applicant sought leave to appeal against a decision disallowing his complaint at his claim for race discrimination being struck out as scandalous, frivolous or vexatious. He said that the Tribunal had dismissed his claim without giving him . .
Distinguished – Balamoody v Manchester Health Authority EAT 12-Nov-2001
The Tribunal heard a preliminary application in a claim for unlawful race discrimination. Earlier applications had been struck out. This second set of applications had been struck out as frivolous by the Tribunal on the basis that they were not new . .
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Lists of cited by and citing cases may be incomplete.
Administrative, Employment
Updated: 10 May 2022; Ref: scu.78890
