Blockbuster Entertainment Ltd v James

The power to strike out employment tribunal proceedings for unreasonable conduct is draconian. It arises where there has been deliberate and persistent disregard of required procedural steps or where the conduct has made a fair trial impossible. Even then, the tribunal must determine separately whether striking out is proportionate.

A structured proportionality assessment asks whether a less drastic measure can secure a fair hearing. Relevant alternatives include refusing late evidence, striking out particular material or accommodating delay without unfairness. Where a claim has reached trial, only a wholly exceptional case will ordinarily justify summary termination for earlier unreasonable conduct that had not already caused the claim to be struck out.

An employment tribunal struck out two claims for racial harassment, victimisation and discrimination after finding that the claimant had deliberately and persistently disobeyed procedural orders. It later ordered him to pay £11,000 in costs.

The Employment Appeal Tribunal allowed the claimant’s appeal. It found that the tribunal had materially misunderstood his compliance with an order for further particulars and remitted the strike-out application to a differently constituted tribunal. The employer appealed, arguing that the tribunal’s remaining findings made strike-out inevitable and legally obligatory.

The central questions were whether the Employment Appeal Tribunal had correctly identified a material factual mistake and whether the unaffected findings necessarily justified striking out the claims.

1. Appeal dismissed. The Employment Appeal Tribunal had correctly identified a material mistake in the employment tribunal’s reasoning. The claimant had supplied a ten-page document containing detailed factual allegations. The tribunal’s statement that he had never provided further particulars could not reasonably be read as merely finding that those particulars were inadequate.

2. The remaining findings did not make strike-out inevitable. The alleged failure properly to exchange an amended witness statement had not been assessed with sufficient specificity. Minor additions could ordinarily be ignored, answered or struck out. Similarly, late documents might be refused or accommodated, while an undisclosed audio recording could simply be excluded. Such defaults contribute to striking out only in an extreme case.

3. Under Rule 18(7)(c) in Schedule 1 to the Employment Tribunals (Constitution and Rules etc) Regulations 2004, striking out for unreasonable conduct is a draconian power. Its cardinal conditions are deliberate and persistent disregard of required procedural steps or conduct making a fair trial impossible. If either condition exists, the tribunal must still decide whether striking out is proportionate.

4. By way of guidance for the remitted application, a claim that has reached the opening of its allotted trial should be struck out on procedural grounds only in very unusual circumstances. Persistent or deliberate defaults should ordinarily be addressed when they reach the point of no return. A late application may make strike-out disproportionate even where the underlying complaint about conduct is well founded.

5. Proportionality requires a structured and separate examination. The tribunal must ask whether a less drastic measure can achieve a fair and orderly hearing. It must consider the readiness of the case for trial, any remaining preparation time, the duration and character of the misconduct, and measures such as refusing late material. Proportionality is an independent safeguard in the overall interests of justice, rather than a consequence flowing automatically from unreasonable conduct.

6. The order remitting the strike-out application to a differently constituted employment tribunal therefore remained in place.

• Court of Appeal (Civil Division): Dismissed the employer’s appeal in [2006] EWCA Civ 684, leaving in place the order for reconsideration by a differently constituted employment tribunal.
• Employment Appeal Tribunal: Allowed the claimant’s appeal against strike-out because the employment tribunal had materially misunderstood the extent of his procedural compliance. It remitted the issue to a differently constituted tribunal.
• Employment tribunal: Struck out both discrimination claims for unreasonable conduct and non-compliance with procedural orders. It subsequently ordered the claimant to pay £11,000 in costs.