Taylor v HP Enterprise Services UK Ltd

An Employment Tribunal may strike out a claim under rule 18(7) where the claimant has not actively pursued it and a fair hearing is no longer possible. Strike-out is a serious, last-resort sanction, but it is justified where prolonged delay, inadequate preparation, unavailable witnesses and failed case-management interventions mean that no realistic hearing date or fair trial can be identified. The discretion is fact-sensitive and must be exercised in accordance with the overriding objective. Authorities concerning a case in which liability had already been determined do not govern a claim that has never reached a fair hearing and remains materially unprepared.

The claimant appealed against an Employment Tribunal judgment striking out claims arising from his redundancy and allegations of disability and race discrimination and unlawful deductions. The claims had remained unresolved for about six years. The case had generated extensive correspondence and several case-management discussions, but remained insufficiently particularised and unprepared for trial. The Employment Judge concluded that the claimant had not actively pursued the case and that a fair hearing was no longer possible.

The Employment Appeal Tribunal, sitting under rule 3(10), considered whether the Employment Judge had erred in law, particularly in applying Peixoto and distinguishing Abegaze.

1. Appeal dismissed. The Employment Judge had made no error of law in striking out the claim.
2. Rule 18(7)(d) permits striking out where a claim is not being actively pursued, and rule 18(7)(f) applies where a fair hearing is no longer possible. Those powers must be exercised as part of proper case management and in accordance with the overriding objective.
3. Strike-out is a draconian and last-resort sanction. It may nevertheless be appropriate where the claim has remained substantially unprepared for a prolonged period, the claimant cannot identify when he will be ready, witnesses and evidence have become less available, and repeated Tribunal interventions have failed to progress the case.
4. The Employment Judge was entitled to apply Peixoto v British Telecommunications Limited PLC, which was directly on point. There was no identified date in the immediate future when a fair hearing could take place and no obvious further step likely to expedite matters.
5. Abegaze v Shrewsbury College of Arts and Technology did not govern the case. In that case liability had already been determined and only remedy remained, so the parties and Tribunal had the benefit of completed fact-finding. Here, the claim had not reached a hearing and the Respondent’s ability to answer it was materially affected by the delay.
6. The claimant’s arguments on the merits of the employment dispute did not address the procedural question before the EAT. The adjournment application was also refused.

• Employment Appeal Tribunal: appeal against the judgment of Employment Judge Warren, sitting at Shrewsbury on 10 June 2010 with Reasons registered on 25 August 2010. The EAT dismissed the appeal and upheld the strike-out.