But Why Can’t We Strike It Out?

Rajeev Thacker analyses a recent decision of the Employment Appeal Tribunal stressing the limited nature of the power to strike out claims.

My colleague, David Renton, has recently published an excellent book. Entitled Struck Out, it explains in detail how and why workers feel let down by the employment tribunal system. The employee in Williams v Real Care Agency Ltd suffered this sense of injustice in what the Employment Appeal Tribunal described as a case having an “unusual and possibly unique procedural history.”

Ms Williams had been dismissed for falsely over-claiming her hours of work. She admitted this misconduct but argued that the practice had been sanctioned by her employer for its own benefit. In the course of the hearing before the employment tribunal, the employer applied to strike out Ms Williams’s claim. This application came after the employer had called all its witnesses and in the course of the cross-examination of Ms Williams. It was clear from Ms Williams’s claim form that she intended to call witnesses to make good her allegation as to her employer’s behaviour.

The employer advanced three grounds in support of its strike-out argument. First, that the contract of employment was tainted by illegality, second, that Ms Williams’s evidence was not credible and, third, that there was no reasonable prospect of her obtaining any award of compensation. The employment tribunal acceded to all these grounds and struck out the claim.

The EAT was highly critical of the approach taken by the tribunal. It said that the tribunal had failed to recognise that the power to strike out “must be exercised in accordance with reason, relevance, principle and justice.” Furthermore, the EAT found it difficult to envisage a case which would be appropriate to strike out, in the course of a full hearing, on the basis of “evidential insubstantiability”. Far better, the EAT pointed out, to hear the evidence and come to a decision on the merits. A willingness to entertain what was in truth an interim application would end up costing more time and money. Significantly, the EAT itself recognised that such inappropriate use of the power to strike out “risks the sense that litigants might have that they have been wrongly shut out from telling their story in a public forum because the court at some stage mid‑hearing refuses to hear any more.”

Whilst this decision does not lay down any new legal principle, it does reaffirm the fundamental importance of a fair hearing. Such a reminder is especially timely in the context of an increasing number of unrepresented litigants who are using the tribunal system in an attempt to vindicate fundamental socio-economic rights. As we are often told by both the higher courts and the government, the idea of a tribunal system is to enable individuals, with the assistance, to some extent, of first-instance judges, to obtain speedy and efficient justice. Whether or not such a result obtains is highly questionable. For every Ms Williams who manages to mount a successful appeal, there are plenty more who suffer the consequences of procedural injustice.


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One Response to But Why Can’t We Strike It Out?

  1. Andrew says:

    A fair hearing is one after which the loser will pay the winner’s costs. And if the loser is the Claimant, at which s/he was compelled (if the Defendant so requires) to carry insurance for the risk before dragging the Defendant into court or tribunal.

    This is particularly essential in discrimination cases where the law is complex and the compensation unlimited, and the Defendant can face the loss of everything s/he has in the world. Legal representation will be essential – but the Claimant will not have to pay if the claim fails. Litigation under such rules is nothing more than legalised blackmail, and for my part I doubt if it is Article 6 compliant.

    Of course if the claim succeeded the cost would be added to the compensation.

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