Jakpa v London Underground Ltd & Ors

A strike-out remains an exceptional remedy, especially once a merits hearing has begun. It may nevertheless be proportionate where a party’s conduct has made a fair continuation of the proceedings impossible and no lesser order can avoid injustice to the other party.

The Employment Tribunal must carefully identify why a fair hearing is impossible and consider alternatives to strike-out. On appeal, the Employment Appeal Tribunal will not substitute its own assessment where the Tribunal has taken the correct legal approach and reached a proportionate conclusion on its findings.

The claimant appealed against the London Central Employment Tribunal’s reserved judgment, promulgated on 30 October 2012, striking out his claims of unfair dismissal and race discrimination against his former employer and three employees.

The Tribunal had heard the merits case over about 16 days. It found that the claimant’s conduct, including his non-attendance and attempts to revisit an earlier disclosure ruling, required an adjournment that would unfairly prejudice the respondents. It struck out the claims on the basis that a fair hearing was no longer possible.

The central issue was whether strike-out was a lawful and proportionate response, or whether a lesser alternative should have been adopted.

1. Appeal dismissed. The Employment Tribunal was entitled to strike out the claims. It had made a measured decision after hearing both parties and was fully aware that strike-out was an exceptional order.

2. Authorities including Blockbuster v James, Bennett v LB of Southwark and Abegaze v Shrewsbury College establish the exceptional and draconian character of strike-out. They require careful analysis of the reason said to make a fair hearing impossible. The Tribunal had undertaken that analysis.

3. The claimant’s conduct had caused the need to adjourn a carefully timetabled, part-heard case. The respondents would suffer material unfairness because their advocate was about to go on maternity leave and two material witnesses would be overseas when the hearing resumed. The Tribunal was entitled to reject the claimant’s stated reasons for postponement.

4. Abegaze did not require an unless order or another lesser sanction. In that case, an alternative order could proportionately secure progress to a remedy hearing. Here, the Tribunal was entitled to conclude that no order short of strike-out could avoid injustice to the respondents.

5. The Tribunal could infer the claimant’s motivation from its observations during 16 hearing days. There was no need to place him in the witness box, particularly as he had an opportunity to oppose the application and no application for oral evidence or cross-examination had been made.

6. Applying the appellate restraint described in Bowater v North West London Hospitals NHS Trust, the Appeal Tribunal found no error of law or disproportionate exercise of discretion. The circumstances were sufficiently rare and extreme to justify strike-out.

• Employment Appeal Tribunal: dismissed the claimant’s appeal: [2013] UKEAT 0571_12_2901.
• London Central Employment Tribunal: struck out the claimant’s unfair-dismissal and race-discrimination claims in a reserved judgment promulgated on 30 October 2012.