Malik v Plymouth Hospitals NHS Trust & Others

Striking out discrimination claims is an extreme and rare measure. It is nevertheless proper where the claims are abusive, scandalous or vexatious, or have no reasonable prospect of success. A tribunal may strike out claims where the claimant repeatedly fails to comply with directions, clarify the allegations or attend to prosecute them, particularly where those failures make a fair trial impossible. An appeal may be heard in the appellant’s absence where the appellant has notice, a full opportunity to prepare, and fails to comply with directions or attend. Costs may be ordered where an appeal is misconceived, has no reasonable prospect of success, or has been conducted unreasonably.

The appellant brought numerous employment claims against an NHS Trust and individual respondents, alleging discrimination on several grounds and whistleblowing. The Employment Judge, sitting at Plymouth, dismissed or struck out the live claims on grounds including limitation, duplication, and their scandalous and vexatious character. The appellant had failed to clarify and progress the claims and did not attend the hearing.

He appealed to the Employment Appeal Tribunal. After directions were given for a preliminary hearing, he sought postponements, failed to comply with the directions, and did not attend. The central issues were whether the Employment Tribunal had been entitled to strike out the claims and whether the appeal could fairly be determined in his absence.

1. The appeal was dismissed. The Employment Judge had adopted a careful and analytical approach to each claim. The claims had either been dismissed as out of time or duplicated, or struck out as scandalous and vexatious.
2. Although striking out discrimination claims is an extreme and rare remedy, it is permissible where the claims are abusive or have no reasonable prospect of success. The court referred to Anywanyu [2001] ICR 391 (HL) and Abegaze v Shrewsbury [2009] EWCA 96.
3. The Employment Tribunal had taken proper case-management steps and had given the appellant repeated opportunities to clarify his allegations and comply with directions. His failure to assist the tribunal, attend the pre-hearing review, or progress serious allegations meant that there could be no fair trial of the issues.
4. The preliminary hearing could properly proceed in the appellant’s absence. He was on notice, had been given a full opportunity to prepare, had failed to comply with directions, and had failed to attend. The Tribunal had also made allowance for his medical condition, and no injustice had been shown.
5. The appellant’s conduct justified a costs order under rules 34A(1) and 34A(2), because the appeal was misconceived, had no reasonable prospect of success, had been conducted unreasonably, and directions had not been followed. The order was to take effect after seven days, subject to written submissions. The appellant’s ability to pay could be considered under rule 34B(2).

• Employment Appeal Tribunal: dismissed the appeal against the Employment Judge’s judgment registered with reasons on 20 December 2010.
• Employment Tribunal: dismissed and/or struck out the appellant’s then live claims, including claims dismissed as out of time or duplicative and claims found to be scandalous and vexatious.