Riley v Crown Prosecution Service

An Employment Tribunal’s case-management decision may be overturned on appeal only for an error of legal principle or a perverse outcome. This includes failing to consider a relevant matter or considering an irrelevant one.

When deciding whether illness prevents a fair hearing, the tribunal must balance fairness to both parties, the interests of other litigants and the right to a fair trial within a reasonable time. If medical evidence provides no realistic prognosis of sufficient recovery within a reasonable period, and further delay would prejudice a fair determination of old claims, striking out remains available.

The appellant brought four sets of Employment Tribunal proceedings alleging race and disability discrimination, whistleblowing and unfair treatment culminating in her dismissal. Severe depression prevented her from participating in a four-week merits hearing. The medical experts could provide no firm prognosis and agreed that the litigation itself was a significant obstacle to recovery.

The Employment Tribunal struck out the proceedings under Rule 18(7)(f) because a fair trial was not possible in the foreseeable future. The Employment Appeal Tribunal, in decision UKEAT004312M, upheld that conclusion. The Court of Appeal considered whether the tribunal had committed an error of legal principle or reached a perverse outcome.

1. Appeal dismissed unanimously. The Employment Tribunal’s case-management decision could be disturbed only for an error of legal principle or perversity. The alternative approach, under which the appellate court determines for itself whether the decision was fair or right, did not apply to an appeal from the Employment Tribunal. Such appeals are confined to questions of law.

2. The Employment Judge was entitled to find that the appellant would remain unable to participate for at least 12 months and, on the balance of probabilities, for more than two years. The experts could provide no realistic prognosis of recovery. They agreed that the unresolved litigation was itself a major stressor and might prevent recovery until the proceedings ended.

3. An adjournment to the next available four-week hearing date would therefore have been pointless. The appellant’s allegation that the respondent had caused her illness could not be assumed to be correct before trial. Nor did the absence of a breach of a tribunal order preclude striking out where illness made a fair trial impossible.

4. The overriding objective requires civil and employment cases to be decided justly, expeditiously and without unreasonable expense. Article 6 of the European Convention on Human Rights protects both parties’ entitlement to a fair trial within a reasonable time. Tribunals must also consider the interests of other litigants awaiting hearings, the demands placed on tribunal time, fading recollections, the stress on witnesses and the age of the allegations.

5. A tribunal is not required to adjourn a lengthy case merely in the hope that a claimant’s health will improve. Where doctors cannot give a realistic prognosis of sufficient improvement within a reasonable period, and the proceedings concern events already in the distant past, striking out must remain available. The Employment Judge had properly assessed the medical evidence and the balance of prejudice. No error of law or perverse outcome was established.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously and affirmed that the Employment Tribunal had made no error of law in striking out the proceedings: [2013] EWCA Civ 951.
2. Employment Appeal Tribunal: Wilkie J upheld the strike-out because the Employment Tribunal’s approach disclosed no error of law: UKEAT004312M.
3. Employment Tribunal: Judge Hall-Smith struck out the proceedings under Rule 18(7)(f) because the medical evidence showed that a fair trial would not be possible in the foreseeable future.