Abegaze v Shrewsbury College of Arts & Technology

A tribunal may strike out a claim because a fair hearing is no longer possible only where the consequences of culpable delay actually prevent a fair hearing. Evidential difficulty which existed before the delay, an unsupported assumption that a witness cannot recall events, or a change in tribunal membership does not establish that condition.

Strike out remains a severe and proportionate last resort. Where a party’s failure to co-operate with medical examination obstructs a remedies hearing, an unless order requiring co-operation and disclosure of medical records may secure a fair hearing without depriving a successful claimant of a remedy under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

The Employment Tribunal had found, by a majority and without appeal, that the College had failed to appoint the claimant as a lecturer and that race was a factor in the decision. The outstanding remedies claim was repeatedly delayed after the claimant failed to co-operate with a psychiatric examination sought by the College.

In 2006, the Employment Tribunal struck out the remedies claim for failure actively to pursue it and because a fair hearing was no longer possible. The Employment Appeal Tribunal dismissed the claimant’s appeal: UKEAT/0176/07/ZT.

The claimant appealed on the grounds that the employment judge should have recused himself for apparent bias and that the strike-out decision relied on considerations irrelevant to whether a fair remedies hearing remained possible.

1. Appeal allowed unanimously. Elias LJ, with whom Rimer and Ward LJJ agreed, held that the Employment Tribunal’s strike-out decision could not stand. The employment judge had asked the correct general question under Rule 18(7)(f), but several matters relied on did not show that a fair remedies hearing was impossible.
2. The assumed inability of Mr Moseley to remember the disputed conversation was unsupported. He had not been asked whether he could remember it, and any difficulty caused by time would also affect the other participant and could be reflected in the assessment of the evidence. The later emergence of evidence relevant to mitigation did not itself make a hearing unfair.
3. The retirement of the original lay members was not a proper reason to strike out the claim. The employment judge had been mistaken to think that he could not fairly share the original tribunal’s preliminary impressions with new members, provided they were clearly identified as preliminary and the reconstituted tribunal decided the remedies on the evidence before it. Properly understood, his comments disclosed neither actual nor apparent bias and gave no basis for recusal.
4. The causation difficulties concerning injury to feelings and personal injury had existed when the remedies hearing could have proceeded in 2003. They therefore could not be attributed to the later delay. Although evidence is needed to assess injury to feelings, a tribunal could find some injury flowing from the established direct discrimination, potentially at the lower end of the scale in [2003] ICR 318.
5. This was an exceptional case because liability had already been determined for the claimant. His earlier non-co-operation had impeded a fair hearing, but the position was not irreversible. A proportionate alternative was an unless order requiring him to attend the College’s medical examination and disclose his medical records, with strike out for non-compliance.
6. The matter was remitted to the Employment Tribunal for appropriate case-management orders and a remedies hearing before a fresh employment judge.

1. Court of Appeal (Civil Division): allowed the claimant’s appeal, set aside the strike out and remitted the remedies claim to the Employment Tribunal: [2009] EWCA Civ 96.
2. Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal’s strike-out decision: UKEAT/0176/07/ZT.
3. Employment Tribunal: found the College liable for race discrimination in 2000. In 2006 it struck out the outstanding remedies claim for failure actively to pursue it and because it considered a fair hearing was no longer possible.