Key Facts
- •L. Oyeibisi (Claimant/Appellant) was dismissed from her employment with Hyde Housing Association Ltd (Respondent) on 8 October 2020.
- •She brought two claims to the Employment Tribunal (ET) alleging racial and sexual harassment and whistleblowing.
- •The ET struck out her claims under Rule 37(1)(b) of the Employment Tribunal Rules of Procedure 2013 due to the scandalous, unreasonable, and vexatious conduct of her representative, Mr Ogbonmwan.
- •The ET concluded a fair trial was impossible due to Mr Ogbonmwan's conduct and that it was unlikely to change.
- •The Claimant appealed to the EAT arguing procedural unfairness as neither she nor her representative received reasonable notice of the strike-out application.
Legal Principles
Rule 37 ET Rules 2013 allows for striking out claims if proceedings have been conducted scandalously, unreasonably, or vexatiously.
Employment Tribunal Rules of Procedure 2013, Rule 37
A party must be given a reasonable opportunity to make representations before a claim can be struck out (Rule 37(2)).
Employment Tribunal Rules of Procedure 2013, Rule 37(2)
The three-step Bolch v Chipman test for strike-out applications: (1) scandalous, vexatious or unreasonable conduct; (2) possibility of a fair trial; (3) proportionality of strike-out.
Bolch v Chipman [2004] IRLR 140
In strike-out applications, proportionality is key; less drastic measures should be considered if possible.
Blockbuster Entertainment Limited v James [2006] EWCA Civ 684
Advance notice is essential for a striking out application, allowing the party to prepare representations; reasonableness depends on the circumstances.
Hasan v Tesco Stores Ltd [2016] UKEAT/0098/16
The conduct of a representative can be attributed to the claimant when assessing whether a claim should be struck out under Rule 37(1)(b).
Bennett v Southwark London Borough Council [2002] ICR 881
Outcomes
The EAT allowed the appeal.
The ET's procedure was fundamentally unfair to the Claimant as she did not have a reasonable opportunity to respond to the strike-out application due to insufficient notice of the grounds for the application. The short timeframe between notification and the application made it impossible for her to meaningfully respond or even consider changing representation.
The case was remitted to a differently constituted Employment Tribunal.
The EAT deemed it inappropriate to remit the case to the original judge due to her expressed strong views on the claimant's representative's conduct.