W Davey v Harrods Ltd
[2023] EAT 133
T v Royal Bank of Scotland Plc
11 September 2023
[2023] EAT 119
Employment Appeal Tribunal
A worker was fired and sued for unfair dismissal and discrimination. The first court threw out the case because the worker wasn't following the rules. A higher court said that was too harsh. The higher court said that there were ways to manage the worker's problems without completely ending the case.
Key Facts
- •The claimant, T, was dismissed by Royal Bank of Scotland PLC after a year of sickness absence.
- •T brought claims of unfair dismissal and disability discrimination.
- •The employment tribunal struck out T's claims due to non-compliance with orders and the inability to have a fair trial.
- •T appealed the strike-out decision to the EAT.
- •The EAT's previous decision had remitted the case back to the employment tribunal.
Legal Principles
Striking out a claim is a draconian measure and should only be used as a last resort.
James v Blockbuster Entertainment Ltd [2006] IRLR 630 CA
Even with deliberate non-compliance, the fundamental question is whether a fair trial is still possible.
Bolch v Chipman [2004] IRLR 140 EAT
When considering striking out due to non-compliance, the overriding objective must be considered, including the magnitude of non-compliance, responsibility for the failure, unfairness caused, possibility of a fair hearing, and appropriateness of the sanction.
EAT's first decision in this case
A claim cannot be struck out unless the party has been given a reasonable opportunity to make representations.
Employment Tribunals Rules of Procedure 2013, Rule 37
The EAT's standard of review is Wednesbury – an error of principle or perversity is required to overturn a strike-out decision.
Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327
Outcomes
The EAT allowed the appeal.
The employment tribunal erred in striking out the claims. While the claimant's conduct was challenging and there was non-compliance, the tribunal did not reasonably conclude that the claims were entirely incapable of being tried, and that there were no orders it could make that could reasonably be expected to secure that. The tribunal also did not find, and could not reasonably have concluded, that the claimant’s breach of orders or other conduct was such as to warrant or necessitate a strike out, even if a fair trial was still possible.