Saxena v HM Prison Service

An employment tribunal may strike out proceedings without hearing evidence where the claim is bound to fail, although the power should be exercised cautiously. A bankrupt’s causes of action, including hybrid causes of action, vest in the trustee in bankruptcy. Proceedings brought without the necessary consent or order, and without the trustee’s support, may therefore be incapable of being pursued. An appellate tribunal’s refusal to extend time should not be disturbed unless it was plainly wrong, proceeded on an erroneous principle, or failed to take account of a relevant matter. Permission to appeal requires a real prospect of success.

The claimant, a locum medical officer, brought late claims for unfair dismissal and race discrimination arising from the termination of his position in 1995. The Employment Tribunal stayed the proceedings during his bankruptcy and later dismissed them as vexatious and outside its jurisdiction. The Employment Appeal Tribunal refused an extension of time for appealing, concluding that the claims were bound to fail. The claimant sought permission to appeal to the Court of Appeal, challenging the tribunal’s power to strike out without a hearing, the effect of his bankruptcy, the refusal to hear him in person, and the treatment of alleged tax and discrimination issues.

Application refused. The appeal had no real prospect of success.

1. Permission and appellate restraint. The claimant could appeal only on a point of law and permission required a real prospect of success. The Court of Appeal could interfere with the Employment Appeal Tribunal’s discretionary refusal to extend time only if that decision was plainly wrong, erroneous in principle, or failed to take account of a relevant factor or took account of an irrelevant one.
2. Bankruptcy. Following Ord v Upton [2000] 2 WLR 755, causes of action, including hybrid causes of action, vested in the trustee in bankruptcy under sections 283 and 306 of the Insolvency Act 1986. The claims had not been assigned back to the claimant. No court order authorising their pursuit had been obtained, and the trustee did not support the proceedings. The Employment Appeal Tribunal was therefore entitled to regard the claims as bound to fail.
3. Strike-out without a hearing. Employment tribunals possess procedural powers to protect their processes from claims bound to fail. Although those powers should be exercised cautiously because strike-out deprives a claimant of the opportunity to present evidence, a prior evidential hearing was not required in these circumstances. The claimant had been able to make submissions by correspondence.
4. The allegations concerning tax and national insurance were irrelevant to the unfair-dismissal and race-discrimination claims, and the papers contained no credible evidence of the alleged irregularities. The refusal to extend time was consequently upheld. There was no order for costs.

• Employment Tribunal: Proceedings were stayed during the claimant’s bankruptcy and later dismissed under regulation 13(2) of the Employment Tribunals Regulations 1993 as vexatious, improperly brought and outside the tribunal’s jurisdiction.
• Employment Appeal Tribunal: The Registrar refused an extension of time for appealing. Lindsay J, sitting as President, dismissed the appeal against that refusal and concluded that the underlying claim was bound to fail.
• Court of Appeal (Civil Division): Permission to appeal was refused.