Osonnaya v South West Essex Primary Care Trust (Unfair Dismissal)

A strike-out because a fair hearing is no longer possible is a last-resort and proportionate measure. The Employment Tribunal must determine whether a fair hearing is genuinely unattainable, rather than merely delayed or costly. It must consider whether robust case management, representation, time limits, further medical evidence, or a lesser measure can secure a fair and timely determination.

An Employment Judge may initiate a strike-out process under rule 18(7) without an application by either party, provided the affected party receives the required notice and opportunity to respond. Where substantial progress has been made, a claimant is blameless for delay, and the identified prejudice is principally financial or speculative, those matters will not ordinarily justify strike-out without an adequate assessment of alternatives.

The claimant brought claims of unfair dismissal for protected disclosure, disability discrimination and race discrimination against the respondent Primary Care Trust. Her status as an employee or worker was directed to be determined at a pre-hearing review. The review became prolonged, principally because of the claimant’s serious illness and related absences. The Employment Judge expressly found that she was not at fault for the delay.

After the claimant’s evidence had closed and the respondent’s principal witness was under cross-examination, the Employment Judge struck out the claims of his own motion under rule 18(7)(f) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. He considered that no fair hearing remained possible because the proceedings had no predictable end, the respondent had incurred substantial costs, and a witness might become unavailable.

The claimant appealed. The central issue was whether that strike-out was a lawful and proportionate response to the delay and uncertainty.

1. Appeal allowed. The Employment Judge had jurisdiction to initiate consideration of a strike-out of his own motion. Rule 18(7) conferred the power, and the reference in rule 18(6) to a party’s request concerned the occasion for determining the matter. The required notice and opportunity to respond remained necessary.

2. A strike-out under rule 18(7)(f) could operate independently of fault by the party whose claim was struck out. However, it was a draconian measure of last resort. Following the approach in Abegaze and Blockbuster Entertainment Ltd v James, the Tribunal had to determine whether a fair hearing was no longer possible and whether strike-out was proportionate when compared with less drastic measures.

3. The Employment Judge erred in treating the unfinished review as having no end in sight. The claimant’s case had finished, the respondent’s principal witness was already under cross-examination, and only two further witnesses remained. Robust case management, including limits on questioning and continuation through a representative if the claimant could not attend, could have brought the review to a conclusion within a reasonable time.

4. The identified prejudice did not justify the conclusion reached. Financial cost was real prejudice but could not be decisive in the exercise of a power to deny a hearing. The possible future absence of a witness was speculative. The Judge also failed to obtain or require medical material directed to the claimant’s future ability to participate and failed sufficiently to consider how completion of the preliminary issue could affect the need for, and scope of, any substantive hearing.

5. The strike-out could not stand. The matter was remitted to continue, with strict case management and on the basis that the claimant would entrust conduct of her case to a representative if she could not attend. Non-compliance with future directions could attract sanctions.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the proceedings for continuation with strict case management.
• Employment Tribunal, East London: On 9 August 2011, struck out the claims under rule 18(7)(f) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 on the ground that a fair hearing was no longer possible.