Gainford Care Homes Ltd v Tipple

An Employment Tribunal gives adequate reasons where, read fairly and as a whole, they identify the material issues and sufficiently explain why a full strike-out, rather than a lesser measure, was proportionate. In assessing proportionality, the tribunal may consider the effect of intimidatory conduct on a claimant who is also a key witness in a connected claim.

A full strike-out may be justified where barring an individual representative or taking other case-management steps would not secure a fair hearing. The appellate tribunal will not require separate reasoning on an alleged distinction where the reasons and the material facts adequately show why the order extended to the combined remedy proceedings.

The employer appealed against an Employment Tribunal decision striking out its response after finding that two of its representatives had intimidated Ms Roe at the tribunal, including through a driving incident outside the building. The Tribunal concluded that a fair trial was impossible and barred the employer from the subsequent joint liability and remedies hearing concerning Ms Roe and Ms Tipple.

The employer did not specifically appeal the later merits decision. Following a paper sift, only two grounds proceeded: whether the Tribunal had adequately explained why the strike-out extended to the remedy hearing in Ms Tipple’s case, and why no lesser measure was sufficient or proportionate.

1. Appeal dismissed. The Employment Tribunal’s reasons, read in their full context, were sufficient under the Meek principles and rule 30(6) of the ET Rules 2004.

2. The Tribunal had identified and addressed the material questions: whether the conduct made a fair trial impossible and whether a response short of barring the employer would be proportionate. Its reasoning at paragraph 45 expressly considered the suggested lesser measure of preventing Mr Imran Khaliq from attending or giving evidence, and explained why that would not secure a fair trial.

3. The Tribunal was entitled to take account of the serious effect of the intimidation on Ms Roe. She was a claimant in her own right and a key witness in Ms Tipple’s claim. Her evidence concerning the employer’s attitude to Ms Tipple’s sexuality was also relevant to compensation for injury to feelings. Accordingly, the reasons adequately supported the extension of the order to the combined remedy proceedings.

4. The Tribunal had recognised that strike-out was an extreme and draconian step, considered proportionality, and concluded that only a total strike-out met the justice of the case. The later inquisitorial approach at the merits hearing also ameliorated the effect of the employer’s non-participation.

5. Duffy v George was materially different because neither a strike-out order nor an application for one arose there. It did not undermine the adequacy of the Tribunal’s reasoning.

• Employment Appeal Tribunal: appeal against the strike-out judgment dismissed.

• Employment Tribunal, North Shields: on 14 November 2012, struck out the employer’s response after finding intimidation and concluding that a fair trial was not possible; the employer was debarred from the subsequent joint liability and remedies hearing.

• Employment Tribunal, North Shields: an application to review the strike-out judgment was dismissed by judgment and reasons dated 23 July 2013.