Balls v. Downham Market High School & College

A strike-out power under rule 18(7) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 is a stringent remedy. A claim may be struck out for lacking reasonable prospects only where, after careful consideration of all available material, it has no reasonable prospect of success. The tribunal must not resolve disputed facts in the respondent’s favour.

For failure actively to pursue a claim, the tribunal must first find such a failure and then decide, in the whole circumstances, whether strike-out is a proportionate exercise of discretion. A claimant’s separate claim must be assessed on its own merits. It cannot be rejected by association with wrongdoing established against another claimant.

The claimant, a school groundsman dismissed for alleged gross misconduct, brought claims for unfair dismissal and unlawful deductions from wages. His wife, also dismissed by the school, was later convicted of theft. The claimant was never charged. The claims had been conjoined and stayed while criminal investigations continued.

An Employment Tribunal struck out both claims on the grounds that they had no reasonable prospects of success and had not been actively pursued. It treated the wife’s conviction as materially bearing on the claimant’s claims and found that he had not progressed them.

The claimant appealed. At a rule 3(10) hearing, counsel’s grounds were permitted to replace his unrepresented notice of appeal. The central issue was whether the Tribunal had lawfully exercised its strike-out power.

1. Appeal allowed. The claimant’s claims were remitted to a freshly constituted Employment Tribunal. The original Tribunal’s approach to both strike-out grounds was wholly flawed.

2. A finding that a claim has no reasonable prospects of success requires a careful consideration of all available material. The word no sets a high threshold. The inquiry is not whether the claim is likely to fail, whether it might fail, or whether the respondent’s disputed assertions are likely to be proved. The Tribunal should also consider relevant material on its file, while allowing the parties to address it.

3. The Tribunal had wrongly treated the claimant as implicated by his wife’s conviction. His claims required separate assessment. He had a different role, had opposed conjunction, had consistently denied wrongdoing, and had not been charged. The Tribunal had no proper basis for its conclusion that his unfair-dismissal claim could not succeed. Its conclusion on the wages claim was also untenable, particularly as no response form relating to that claim had been identified.

4. On the active-pursuit ground, the Tribunal first had to identify a failure to pursue the claim and then exercise its discretion in the whole circumstances. Strike-out is the most serious sanction. The correspondence showed that the claimant had sought to revive and progress his stayed claims once the investigation concerning him ended. The Tribunal’s unclear and unhelpful responses could not support a finding that he had failed actively to pursue them.

5. The Respondent’s late challenge to the substituted grounds of appeal was properly refused. The claimant’s original notice had captured the essential issues, counsel’s grounds clarified them, no prejudice was identified, and the overriding objective and fair-trial considerations favoured permitting the amendment.

• Employment Appeal Tribunal: Appeal allowed in [2010] UKEAT 0343_10_1511. The strike-out judgment was set aside and the claims were remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal, Norwich: By judgment dated 7 August 2009, the claimant’s unfair-dismissal and wages claims were struck out as having no reasonable prospects of success and as not actively pursued.