Hemming v British Waterways Board

A tribunal may not strike out a claim for unreasonable conduct or failure actively to pursue it without giving effective notice of the proposed order, its grounds, and a real opportunity to answer it under the Employment Tribunals (Constitution and Rules of Procedure) Regulations. Notice given to a party known to be in hospital, shortly before the hearing, did not meet those mandatory requirements.

Where credible information indicates that a litigant is unable through illness to attend, the tribunal must determine the adjournment application and give reasons. It must consider a proportionate lesser measure before imposing the draconian sanction of strike-out. A demand for signed medical evidence within about an hour was unreasonable in the circumstances. Costs thrown away by an adjournment may nevertheless be awarded under the no-blame costs power.

The Claimant brought substantial race discrimination claims against the Respondent. An eight-day Employment Tribunal hearing began on 16 April 2012, but she did not attend because she had been taken by ambulance to hospital and was undergoing tests.

The Employment Tribunal received information from her husband, required signed medical confirmation by 2.00 pm, and then struck out the claims for unreasonable conduct and lack of active pursuit. It summarily assessed costs at £10,000. A later review application, supported by the hospital discharge letter, was refused.

The Claimant appealed. The central issues were whether the Tribunal had given the mandatory notice required before strike-out, properly addressed the implied application to adjourn, and lawfully made the strike-out and costs orders.

1. Appeal allowed. The Employment Tribunal's strike-out judgment was a nullity. It had purported to act under rule 18, but had not given the notice required by rule 19 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations.

2. The notice did not identify the two proposed grounds: unreasonable conduct and failure actively to pursue the claim. It therefore did not give the Claimant an opportunity to answer the case against her. In any event, about one hour's notice was ineffective where the Tribunal knew that she was in accident and emergency. Rule 19(2) was also imperfectly complied with because the Tribunal knew that the Claimant was not at the email address to which it sent the notice.

3. Alternatively, the Tribunal made errors of law in principle. The information from the Claimant's husband was an application to adjourn because she was in hospital. The Tribunal failed to determine that application or give reasons for refusing it. Applying Teinaz, Blockbuster and Abegaze, it was disproportionate to require a signed medical report within the time allowed and then to strike out without considering a lesser step, such as adjourning until the following day.

4. The review decision also wrongly treated the discharge letter as material which could have been produced before the 2.00 pm hearing. It was genuinely new evidence and credibly confirmed that the Claimant was undergoing cardiac tests.

5. The £10,000 costs order could not stand. The EAT nevertheless exercised its discretion under rule 40(1) to order the Claimant to pay the Respondent's day-one costs thrown away, assessed at £1,200 plus VAT. The claims were remitted for a full hearing before a freshly constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the Claimant's appeal, set aside the strike-out and remitted the claims to a differently constituted Employment Tribunal: [2013] UKEAT 0102_13_1609.
• Employment Tribunal: On 16 April 2012, struck out the claims and awarded £10,000 costs. On 1 June 2012, refused the Claimant's review application.