Osonnaya v Queen Mary - University Of London

An Employment Tribunal may strike out discrimination claims where a fair hearing is no longer possible, the claimant has conducted proceedings scandalously, unreasonably or vexatiously, has repeatedly failed to comply with orders, or has failed actively to pursue the claim. The remedy remains available in a plain and proportionate case despite the importance of discrimination claims.

An appeal based on factual disagreement succeeds only where the decision is perverse. A recusal application requires more than a party’s sense of injustice or an unresolved complaint against the judge. The Tribunal should deal robustly with unsupported allegations of apparent bias.

The Claimant brought discrimination and protected-disclosure detriment claims arising from her employment with the Respondent. After extensive case management, Employment Judge Ferris struck out all claims following a nine-day pre-hearing review. The Judge found that a fair hearing was no longer possible, that the claims had been conducted unreasonably and vexatiously, that orders had repeatedly been ignored, and that the claims had not actively been pursued.

The Claimant appealed and sought to advance an apparent-bias ground based on a complaint about the Employment Judge and particular conduct during the hearing. She also challenged the factual findings and the strike-out decision. The central issue was whether the Employment Judge had erred in striking out the claims.

1. Application and underlying appeal dismissed. The Employment Judge had correctly directed himself and made findings open to him. The EAT considered the strike-out decision to be unarguably correct.

2. The finding that a fair hearing was no longer possible was independently sufficient and also relevant to the other strike-out grounds. The Judge was entitled to find deliberate and persistent non-co-operation, wilful disregard of procedural requirements, dishonest conduct concerning documents, and a real likelihood of further misconduct. The age of the allegations and the alleged late production of potentially fabricated documents created serious difficulty for the Respondent in mounting a defence.

3. The Judge had also made numerous findings of unreasonable conduct, non-compliance with orders and failure actively to pursue the claims. He was entitled to take account of the effect on the administration of justice and the disproportionate use of Tribunal resources. He had recognised the Claimant’s position as a litigant in person, but found deliberate misconduct rather than mere inefficiency. Strike-out was proportionate notwithstanding the discrimination claims.

4. The proposed bias amendment had no reasonable prospect of success. An outstanding complaint about the Employment Judge did not require recusal, and a litigant’s sense of injustice was insufficient. The specific complaints did not establish actual or apparent bias under [2002] 2 AC 357.

5. The factual challenges did not meet the high perversity threshold. A discrimination claim may properly be struck out in a plain case, despite the public importance of such claims.

• Employment Appeal Tribunal: The Claimant’s rule 3(10) application and appeal were dismissed.

• Employment Tribunal: Employment Judge Ferris, following a nine-day pre-hearing review, struck out the Claimant’s claims in reasons sent on 18 June 2012.