Elliott v The Joseph Whitworth Centre Ltd

A tribunal may strike out a claim for want of active pursuit where delay is inordinate and inexcusable and creates a substantial risk of an unfair resolution or serious prejudice. The power is draconian and requires a case-specific balance of prejudice.

Prejudice may be inferred from the nature of the dispute and the length of the delay. A respondent need not call evidence at a preliminary hearing before the tribunal can infer that fading memories and unavailable records make a fair trial impossible. The ordinary prejudice caused by either allowing or striking out a claim does not determine the balance; the inquiry concerns additional prejudice arising from the particular delay.

The claimant presented a timely unfair-dismissal claim after his dismissal in February 2010. Owing to administrative failure by the Tribunals Service, compounded by his union representative's failure to chase the claim, it was not served on the respondent until nearly two years later.

Employment Judge Milgate, sitting at a pre-hearing review in Nottingham, struck out the claim under Rule 18(7)(d) and (f) of the Tribunal Rules. The claimant appealed, principally contending that the respondent had provided no evidence that memories had faded or that it would suffer unfair prejudice.

The central issue was whether the Judge permissibly found both non-pursuit and the impossibility of a fair hearing without oral or written evidence from the respondent.

1. Appeal dismissed. The Employment Judge permissibly struck out the claim under Rule 18(7)(d) and Rule 18(7)(f) of the Tribunal Rules.

2. The applicable principles derived from Evans v The Metropolitan Police Authority, which applied the Birkett v James requirements, with necessary adaptation, to employment tribunal claims. The delay was plainly inordinate. It was also inexcusable: the Tribunals Service had failed to process the claim, but the claimant's union representative had done nothing for over 21 months to pursue it.

3. The respondent was not required to adduce witness evidence at the pre-hearing review before the Judge could find trial unfairness. A tribunal may infer prejudice from the nature of the case and the length of the delay. The Judge was entitled to conclude that the respondent's ability to defend the dismissal, including the issues of reasonableness and compensation, depended on memories and records that had deteriorated or become unavailable.

4. The ordinary opposing prejudice inherent in every strike-out application was not decisive. The relevant question was whether the delay caused additional, case-specific prejudice, such as fading memories, missing documents or witnesses, or other practical impairment of a fair trial. The Judge considered those matters and made a permissible evaluative decision.

5. No appellate basis for intervention was established. The Judge made no error of principle and did not take account of irrelevant matters or overlook relevant ones. Although the practical consequence might be that the claimant sought advice about remedies against his union or the Tribunals Service, his remedy was not in the Employment Tribunal.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld Employment Judge Milgate's decision at a Nottingham pre-hearing review on 22 May 2012 to strike out the unfair-dismissal claim.
• Employment Tribunal: Reasons for the strike-out decision were sent on 3 September 2012.