Ahmed v Bedford Borough Council

Before striking out discrimination proceedings for scandalous, unreasonable or vexatious conduct, an Employment Tribunal must address whether the conduct means that a fair trial is no longer possible and whether strike-out is proportionate. Strike-out is a draconian sanction. The Tribunal must consider lesser measures, including an unless order, and whether only the part of a combined claim affected by the default should be struck out.

Delay and wilful non-co-operation with an order for a medical examination can satisfy the threshold for unreasonable conduct. It does not, without the required further analysis, justify striking out all claims.

The claimant brought combined claims of race and religious discrimination, together with disability discrimination based on stress and depression. A jointly instructed medical examination was required before the disability issue could proceed. Despite funding being made available and an offer of a home examination, the claimant did not co-operate with the examination.

Employment Judge Adamson struck out the combined claims under rule 18(7)(c). The claimant appealed. The central issues were whether his conduct engaged the strike-out power, whether the Judge had considered whether a fair trial remained possible, and whether a lesser or more targeted sanction should have been considered.

1. Appeal allowed. The claimant's failure to co-operate with the medical examination was capable of amounting to unreasonable conduct and supported the finding of a wilful failure to comply with the Tribunal's order.

2. That threshold finding did not conclude the strike-out application. Applying the principles drawn from Anyanwu, Blockbuster and Abegaze, the Tribunal had to consider whether the conduct meant that a fair trial could no longer take place and whether strike-out was proportionate.

3. The approved note of the Employment Judge's reasons referred to retired or absent witnesses and fading memories, but did not address the critical question whether a fair trial was possible. It also gave no indication that the Judge considered an unless order or a more limited sanction.

4. In particular, the disability claim depended initially on the medical examination, whereas the race and religious-belief claims did not. The Tribunal should have considered whether, under rule 18(8), any sanction should be confined to the disability claim.

5. The strike-out application was remitted for a further pre-hearing review, if necessary with case management directions, before a different Employment Judge. That Judge was to reconsider the application in accordance with those principles.

• Employment Appeal Tribunal: Allowed the claimant's appeal and remitted the respondent's strike-out application for reconsideration by a different Employment Judge.
• Employment Tribunal: Employment Judge Adamson struck out the combined discrimination claims by a judgment dated 8 August 2012 under rule 18(7)(c).