Riley v The Crown Prosecution Service

Where an employment claim is struck out because a fair trial is no longer possible, the tribunal must assess the medical evidence, the likely prospect of the claimant being able to participate within the foreseeable future, and the prejudice to both parties. A case-ending decision directly engages procedural fairness and Article 6. Although an appellate tribunal may need to determine fairness for itself, the result will stand where it was also within the tribunal’s case-management discretion.

An unexplained definition of the foreseeable future is an error of law. It will not require intervention if the evidence independently establishes that the claimant is unlikely to regain capacity while the unresolved litigation remains a significant cause of the disabling illness.

The claimant brought several Employment Tribunal claims against her employer, including claims arising from alleged discrimination, grievances, disciplinary proceedings and dismissal. She had been absent through severe depression since August 2008. Medical evidence before the Tribunal stated that the ongoing litigation was a significant stressor and gave no reliable optimistic prognosis for her capacity to participate in a hearing.

On 11 May 2011, the Employment Tribunal (London South) struck out the claims under Rule 18(7)(f) of the Employment Tribunal Rules of Procedure 2004, concluding that a fair trial was no longer possible, and refused a postponement. The claimant appealed. The central issue was whether that case-ending decision was legally and procedurally fair.

1. Appeal dismissed. The Employment Judge’s decisions to strike out the claims and refuse a postponement were not wrong in law. On the facts found, a fair hearing was no longer possible.

2. A decision which itself terminates a claim directly affects the fairness of the proceedings and engages Article 6. The judge considered that, if the issue had been decisive, the Appeal Tribunal should determine for itself whether the decision was fair, rather than merely review it on Wednesbury grounds. The appeal failed under either approach.

3. The Employment Judge had erred by treating 18 months as the outer limit of the foreseeable future without explaining why that period was appropriate. That error was not material. The proper inquiry was whether the medical evidence showed, on the balance of probabilities, a prospect that the claimant would be fit to participate within the foreseeable future.

4. The evidence and chronology supported the conclusion that she would not be fit to conduct the proceedings. Her depression had persisted for years and was materially caused by the work conflicts and litigation which required her participation before they could be resolved. This created a self-perpetuating situation: the unresolved claim contributed to the illness which prevented its fair adjudication.

5. The Employment Judge had balanced the serious prejudice to the claimant of losing a hearing against the respondent’s prejudice from further substantial delay, including deteriorating recollection. The assessment that a fair trial was not possible was therefore fair and within the Tribunal’s case-management powers. No remittal was ordered.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s strike-out under Rule 18(7)(f) of the Employment Tribunal Rules of Procedure 2004 and refusal of a postponement were upheld.
• Employment Tribunal (London South): On 11 May 2011, struck out the claimant’s claims because a fair trial was no longer possible and refused a postponement.