Obasa v London Borough Of Islington

An employment tribunal must give a claimant a fair opportunity to address the material relied on before striking out a claim for want of prosecution. Where the claimant’s written explanation raises disputed matters which the tribunal proposes to reject, fairness may require an oral hearing, including an opportunity to explain the evidence on oath. An appellate court should not decide an appeal on an alternative strike-out ground which the tribunal did not consider. The court left unresolved whether the applicable strike-out power had to be exercised in accordance with the principles in Birkett v James and Evans v Commissioner of Police for the Metropolis.

The appellant brought Employment Tribunal proceedings alleging unfair dismissal, race discrimination, sex discrimination and disability discrimination. The unfair dismissal and breach of contract complaints were dismissed for want of jurisdiction. The remaining discrimination claims concerned conduct after 5 June 1997.

After repeated postponements, the merits hearing was fixed for September 2001. The appellant did not attend, and her representative arrived late. The Tribunal ordered her to show cause, by medical evidence or another good and sufficient reason, why the claim should not be struck out for want of prosecution. It later struck out the claim after considering her written response and supporting documents, without an oral hearing and before sending her the earlier extended reasons. The Employment Appeal Tribunal dismissed her appeal. The central issue before the Court of Appeal was whether the appellant had received a fair hearing on the strike-out question.

1. Appeal allowed. The Employment Tribunal’s strike-out order was set aside and the matter was remitted for a directions hearing before the hearing on the merits.
2. The appellant had not received a fair hearing on the strike-out issue. She had not received the extended reasons for the earlier adjournment, show-cause and costs decisions before making her response. She therefore lacked a proper opportunity to address findings which might underpin the strike-out.
3. The written explanation raised matters requiring assessment, including the alleged sickle-cell crisis in Spain and the asserted inability to obtain medical evidence. If the Tribunal was to reject those explanations, fairness required an oral hearing at which the appellant could explain them on oath.
4. The Court declined to decide the respondent’s suggested alternative reliance on rule 15(2)(d), because that basis had not been considered by the Employment Tribunal. It also did not decide whether the necessary factual findings satisfied the principles in Birkett v James, as applied to the power to strike out for want of prosecution in Evans v Commissioner of Police for the Metropolis. The point remained arguable, but it was unnecessary to resolve it.
5. On remittal, the Tribunal remained able, after a fair hearing, to reject the appellant’s explanations and find the necessary intentional default. The remittal did not determine the ultimate strike-out question.

• Court of Appeal (Civil Division): Allowed the appeal from the Employment Appeal Tribunal, set aside the Employment Tribunal’s strike-out order and remitted the matter for directions before the merits hearing.
• Employment Appeal Tribunal: Dismissed the appellant’s appeal and held that the Employment Tribunal had acted within its discretion in striking out the claim for want of prosecution. The judgment is referred to in the procedural history as dated 16 December 2003 and elsewhere as promulgated on 17 June 2003.
• Employment Tribunal: Following the appellant’s non-attendance at the September 2001 hearing, confirmed the order striking out the Originating Application for want of prosecution.