Case Number:3312941 /2020
EMPLOYMENT TRIBUNALS
Claimant: MS T MERLAN
Respondent: KIER LIMITED
RECORD OF A PRELIMINARY HEARING
Heard at: Watford Open Hearing by CVP On: 30 June 2022
Before: Employment Judge Skehan (sitting alone)
Appearances
For the claimant: No Attendance
For the respondent: Kelly, counsel
JUDGMENT
1. The claims are struck out
REASONS
(1) This matter had been listed for a further open preliminary hearing heard today.
The purpose of the hearing was to consider whether or not to strike out the
claimant’s claims under Rule 37 of the Employment Tribunal Rules or in the
alternative make a deposit order under Rule 39 of the Employment Tribunal
rules, and/or in the alternative deal with outstanding case management issues
including the listing of a final hearing.
(2) At the commencement of this hearing, the clerk made attempts to contact the
claimant by phone. Her calls were not answered. The claimant did not join the
video hearing. I was happy that the claimant was aware of the hearing and I
considered it in the interest of justice and in line with employment tribunal Rule
47 to proceed to consider strike out of the claimant’s claims.
The claim
(3) The claimant was employed by the respondent as a cleaner and remained in
employment when the form ET1 was issued. The ACAS early conciliation
notification was issued on 20 October 2020 and the ACAS certificate on 28
October 2020. The ET1 form was presented on 29 October 2020. The
claimant’s claims are unclear. It appears that the claimant wished to make a
1 of 8
Case Number:3312941 /2020
claim for race discrimination and whistleblowing detriment. The claim was
defended and the respondent lodged a notice of appearance.
(4) On 16 March 2021 employment Judge Manley directed that the claimant must
send the tribunal and the respondent more information in relation to her claims
by 6 April 2021. This request was repeated on 27 March 2021. The claimant did
not comply with this order and has failed to provide any clarification of her
claims.
(5) A preliminary hearing was held on 21 June 2021 before me. The claimant did
not attend. It is noted that prior to this hearing the claimant had requested a
postponement on the basis of her ill-health. No medical evidence was supplied
in support of this application. The claimant’s application for a postponement
was refused. Due to delay on the part of the administration, the written
summary of this hearing was forwarded to the parties on 16 October 2021.
The claimant was reminded that she must engage with the tribunal process and
failure to do so risked her claims being struck out under the provisions of Rule
37 of the Employment Tribunal rules because the claimant has failed to comply
with repeated orders of the tribunal and/or the claim has not been actively
pursued.
(6) I note that there is an email from the claimant on the tribunal file from June
2021 indicating that the claimant has health issues. However no medical
evidence is provided. There has been no engagement by the claimant with the
tribunal or the respondent for in excess of 12 Months.
Strike out – legal principles
(7) Rule 37 provides:
“37. Striking out
(i) 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
prospect 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 or with an order
of the Tribunal;
(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 of 8
Case Number:3312941 /2020
(ii) 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.”
(8) The need for caution when considering whether to strike out, especially in
discrimination or whistleblowing cases, was emphasised in Abertawe Bro
Morgannwg University Health Board v Ferguson [2013] ICR 1108 EAT,
per Langstaff P:
“33. We would add this final note. Applications for strike-out may in a proper
case succeed. In a proper case they may save time, expense and anxiety.
But in a case which is always likely to be heavily fact sensitive, such as one
involving discrimination or the closely allied ground of public interest
disclosure, the circumstances in which it will be possible to strike out a claim
are likely to be rare. In general it is better to proceed to determine a case on
the evidence in light of all the facts. At the conclusion of the evidence
gathering it is likely to be much clearer whether there is truly a point of law in
issue or not.”
(9) Default with respect to Tribunal orders will not automatically result in a strike
out and the Tribunal must consider whether there may still be a fair trial – De
Keyser Ltd v Wilson [2001] UKEAT/1438/00, per Lindsay P:
“24. As for matters not taken into account which should have been, the
Tribunal nowhere in the course of their exercising their discretion asked
themselves whether a fair trial of the issues was still possible. In a case
usefully drawn to our attention by both sides' Counsel, namely Arrow
Nominees Inc -v- Blackledge [2000] 2 BCLC 167 the Court of Appeal had
before it a case where the Judge below had more than once declined to
strike out the proceedings on the basis that whilst one party had, in the
course of discovery, disclosed forged documents and had lied about the
forgeries during the trial, a fair trial was, in his view, still possible. We pause
to reflect on the magnitude of the abuse there in comparison with Mr
Pollard's and De Keyser's. Whilst in other respects the context of the Arrow
Nominees case is very different, there are passages in the judgment in the
Court of Appeal of relevance. Thus at page 184 there is a citation from
Millett J.'s judgment in Logicrose -v- Southend United Football Club Ltd
(1988) The Times 5th March 1998 as follows:—
(10) “But I do not think that it would be right to drive a litigant from the judgment
seat without a determination of the issues as a punishment for his conduct
however deplorable, unless there was a real risk that that conduct would
render the further conduct of proceedings unsatisfactory. The Court must
always guard itself against the temptation of allowing its indignation to lead
to a miscarriage of justice.””
(11) The question of whether there can be a fair trial may fall to be considered
within the current window; see the decision of the EAT in Emuemukoro v
Croma Vigilant (Scotland) Ltd 2022 ICR 327, EAT, per Choudhury P:
“18. In my judgment, Ms Hunt's submissions are to be preferred. There is
nothing in any of the authorities providing support for Mr Kohanzad's
3 of 8
Case Number:3312941 /2020
proposition that the question of whether a fair trial is possible is to be
determined in absolute terms; that is to say by considering whether a fair
trial is possible at all and not just by considering, where an application is
made at the outset of a trial, whether a fair trial is possible within the
allocated trial window. Where an application to strike-out is considered on
the first day of trial, it is clearly a highly relevant consideration as to whether
a fair trial is possible within that trial window. In my judgment, where a
party's unreasonable conduct has resulted in a fair trial not being possible
within that window, the power to strike-out is triggered. Whether or not the
power ought to be exercised would depend on whether or not it is
proportionate to do so.
19.I do not accept Mr Kohanzad's proposition that the power can only be
triggered where a D fair trial is rendered impossible in an absolute sense.
That approach would not take account of all the factors that are relevant to
a fair trial which the Court of Appeal in Arrow Nominees set out. These
include, as I have already mentioned, the undue expenditure of time and
money; the demands of other litigants; and the finite resources of the court.
These are factors which are consistent with taking into account the
overriding objective. If Mr Kohanzad's proposition were correct, then these
considerations would all be subordinated to the feasibility of conducting a
trial whilst the memories of witnesses remain sufficiently intact to deal with
the issues. In my judgment, the question of fairness in this context is not
confined to that issue alone, albeit that it is an important one to take into
account. It would almost always be possible to have a trial of the issues if
enough time and resources are thrown at it and if scant regard were paid
to the consequences of delay and costs for the other parties. However, it
would clearly be inconsistent with the notion of fairness generally, and the
overriding objective, if the fairness question had to be considered without
regard to such matters.
[…]
21.In this case, the Tribunal was entitled, in my judgment, to accept the
parties' joint position that a fair trial was not possible at any point in the five-
day trial window. That was sufficient to trigger the power to strike- out.
Whether or not the power is exercised will depend on the proportionality of
taking that step. […]”
(12) In Bolch v Chipman UKEAT/1149 Burton P offered guidance as to the
questions which must be answered on an application for strike out under
the predecessor to rule 37(1)(b):
“(1) There must be a conclusion by the Tribunal not simply that a party has
behaved unreasonably but that the proceedings have been conducted by or
on his behalf unreasonably.
[…]
(2) Assuming there be a finding that the proceedings have been conducted
scandalously, unreasonably or vexatiously, that is not the final question so
far as leading on to an order that the Notice of Appearance must be struck
out.
4 of 8
Case Number:3312941 /2020
The helpful and influential decision of the Employment Appeal Tribunal,
per Lindsay P, in De Keyser Ltd v Wilson [2001] IRLR 324 is directly in
point. De Keyser makes it plain that there can be circumstances in which
a finding can lead straight to a debarring order. Such an example, and we
note paragraph 25 of Lindsay P's judgment, is "wilful, deliberate or
contumelious disobedience" of the Order of a court.
But in ordinary circumstances it is plain from Lindsay P's judgment that
what is required before there can be a strike out of a Notice of Appearance
or indeed an Originating Application is a conclusion as to whether a fair
trial is or is not still possible.
[…]
(3)Once there has been a conclusion, if there has been, that the
proceedings have been conducted in breach of Rule 15 (2) (d), and that a
fair trial is not possible, there still remains the question as to what remedy
the tribunal considers appropriate, which is proportionate to its conclusion.
It is also possible, of course, that there can be a remedy, even in the
absence of a conclusion that a fair trial is no longer possible, which
amounts to some kind of punishment, but which, if it does not drive the
defendant from the judgment seat (in the words of Millett J) may still be an
appropriate penalty to impose, provided that it does not lead to a debarring
from the case in its entirety, but some lesser penalty
(4)But even if the question of a fair trial is found against such a party, the
question still arises as to consequence. That is clear because the remedy,
under Rule 15 (2) (d), is or can be the striking out of the Notice of
Appearance. The effect of a Notice of Appearance being struck out is of
course that there is no Notice of Appearance served.”
(13) For a tribunal to strike out for unreasonable conduct, it must be satisfied
either that the conduct involved deliberate and persistent disregard of
required procedural steps or has made a fair trial impossible; and in either
case, the striking out must be a proportionate response — Blockbuster
Entertainment Ltd v James 2006 IRLR 630, CA.
(14) In deciding whether to strike out a party’s case for non-compliance with an
order under rule 37(1)(c), the tribunal will have regard to the overriding
objective set out in rule 2 of seeking to deal with cases fairly and justly. This
requires a tribunal to consider all relevant factors, including:
(i) the magnitude of the non-compliance
(ii) whether the default was the responsibility of the party or his or her
representative
(iii) what disruption, unfairness or prejudice has been caused
(iv) whether a fair hearing would still be possible, and
(v) whether striking out or some lesser remedy would be an appropriate
response to the disobedience — Weir Valves and Controls (UK)
Ltd v Armitage 2004 ICR 371, EAT.
5 of 8
Case Number:3312941 /2020
(15) In Evans and anor v Commissioner of Police of the Metropolis 1993
ICR 151, CA, the Court of Appeal held that an employment tribunal’s
power to strike out a claim for want of prosecution must be exercised in
accordance with the principles that (prior to the introduction of the Civil
Procedure Rules in 1998) governed the equivalent power in the High
Court, as set out by the House of Lords in Birkett v James 1978 AC 297,
HL. Accordingly, a tribunal can strike out a claim where:
(i) there has been delay that is intentional or contumelious
(disrespectful or abusive to the court), or
(ii) there has been inordinate and inexcusable delay, which gives rise
to a substantial risk that a fair hearing is impossible, or which is
likely to cause serious prejudice to the respondent.
(iii) The first category is therefore likely to include cases where a
claimant has failed to adhere to an order of the tribunal. As such, it
overlaps substantially with the tribunal’s power under rule 37(1)(c)
to strike out for non-compliance with tribunal rules or a tribunal
order.
(16) Presidential Guidance has also been given in relation to strike out:
“8.Under rule 37 the Tribunal may strike out all or part of a claim or
response on a number of grounds at any stage of the proceedings, either
on its own initiative, or on the application of a party. These include that it is
scandalous or vexatious or has no reasonable prospect of success, or the
manner in which the proceedings have been conducted has been
scandalous, unreasonable or vexatious.
9.Non-compliance with the rules or orders of the Tribunal is also a
ground for striking out, as is the fact that the claim or response is not
being actively pursued.
10.The fact that it is no longer possible to have a fair hearing is also
ground for striking out. In some cases the progress of the claim to hearing
is delayed over a lengthy period. Ill health may be a reason why this
happens. This means that the evidence becomes more distant from the
events in the case. Eventually a point may be reached where a fair
hearing is no longer possible.
11.Before a strike out on any of these grounds a party will be given a
reasonable opportunity to make representations in writing or request a
hearing. The Tribunal does not use these powers lightly. It will often hold a
preliminary hearing before taking this action.
12.In exercising these powers the Tribunal follows the overriding objective
in seeking to deal with cases justly and expeditiously and in proportion to
the matters in dispute. In some cases parties apply for strike out of their
opponent at every perceived breach of the rules. This is not a satisfactory
method of managing a case. Such applications are rarely successful. The
outcome is often further orders by the Tribunal to ensure the case is ready
for the hearing.
6 of 8
Case Number:3312941 /2020
13.It follows that before a claim or response is struck out you will receive a
notice explaining what is being considered and what you should do. If you
oppose the proposed action you should write explaining why and seeking a
hearing if you require.”
Deliberation and Decision
(17) This is a claim arising from incidents that happened prior to October 2020.
The allegations made by the claimant are unclear and the claimant has
repeatedly failed to comply with Employment Tribunal orders to clarify her
claim. Further the claimant has on two occasions failed without any
reasonable explanation to attend hearings listed for case management
purposes. I consider that the magnitude of the claimants non-compliance
with tribunal orders in the circumstances is significant. The claimant is
acting as a litigant in person and the responsibility for her failure to comply
with the employment tribunal orders lies with her. The respondent is now
subject to substantial prejudice in that it does not know the case it has to
answer. Should this claim continue, the details of it will be provided in
excess of four years following the events complained of. This delay will
have an obvious detrimental effect on the respondent’s ability to gather
evidence to defend the claim. Further, the current listing expectations for
these claims within this region is approximately late 2023 to early 2024.
This further compounds the prejudice suffered by the respondent, caused
by the claimant’s failure to engage within the litigation process.
(18) I have carefully considered whether a lesser sanction would be appropriate
to assist the parties in bringing this matter to a fair final hearing. I consider
that in the circumstances, in light of the claimant’s failure to clarify her
claim, the substantial delay and the claimant’s further non-attendance at
today’s hearing, there is no appropriate alternative order that could be
made by the tribunal that would be compatible with the overriding objective
to deal with the matter fairly and justly.
(19) These are circumstances in which I have concluded that the claimant, by
failing to comply with the employment tribunal directions and attend the
preliminary hearing has failed to particularise her claim and delayed this
matter, resulting in a situation whereby a fair trial in this matter is now
impossible.
7 of 8
Case Number:3312941 /2020
(20) For the reasons set out above the claimant’s claims are struck out in
accordance with the provisions of rule 37 (b), (c), (d) and (e) of the
Employment Tribunal rules.
___________30 June 2022_______
Employment Judge Skehan
Sent to the parties on:
…………………………….
For the Tribunal:
…………………………..
8 of 8
