Cafagna v. ISS Mediclean & Ors

An Employment Tribunal may strike out a claim where the available material shows that it cannot be tried fairly or where the claimant has failed to comply with orders needed to progress the case properly. An appellate tribunal will not interfere with that discretionary decision absent an error of law or principle. The same approach applies where the factual and evidential position differs between related claims. A claim lacking merit may be dismissed on appeal where the lower tribunal applied the correct considerations and reached a conclusion open to it.

This was a full hearing of the claimant’s appeal after earlier rule 3 proceedings. The Employment Judge had struck out claims under the DDA and PIDA. The DDA aspect had already been considered in earlier Employment Appeal Tribunal proceedings, and permission to appeal had subsequently been refused by the Court of Appeal.

The remaining issue was whether the Employment Judge had erred in striking out the PIDA claim. The Employment Judge provided further reasons explaining the material available and the matters taken into account. The central question was whether the strike-out decision involved any error in the exercise of discretion.

1. Appeal dismissed. The Employment Judge was entitled to strike out the PIDA claim.
2. The further reasons sufficiently demonstrated the material available to the Employment Judge when deciding the strike-out application and the matters taken into account. Those were proper matters for consideration.
3. It was open to the Employment Judge to conclude that the claim could not be tried fairly and that the claimant had failed to comply with orders required to enable his case to be properly progressed. The Employment Appeal Tribunal found no error in the exercise of that discretion.
4. The Tribunal considered the standards identified in the authorities referred to in its earlier judgment, but found no error when the Employment Judge’s reasons were assessed against those standards.
5. The earlier decisions concerning the claimant’s other claims had conclusively upheld the conclusion that they lacked merit. The Tribunal therefore concluded that none of the claimant’s claims had merit and that the present appeal also had no merit.

• Employment Appeal Tribunal: Earlier rule 3 proceedings resulted in decisions adverse to the claimant, with the PIDA issue requiring further comments from the Employment Judge. On a full bilateral hearing, the appeal was dismissed.
• Court of Appeal: Permission to appeal concerning the DDA claim was refused on paper and on a renewed application. The claimant did not attend the renewed hearing.