Pye v Queen Mary University of London (Practice and Procedure: Striking-out/dismissal)

An appellate tribunal may interfere with an Employment Tribunal’s strike-out decision only if it is Wednesbury unreasonable. Fairness must be assessed overall. It includes fairness to the claimant, the respondent and the administration of justice.

Where medical evidence supports an adjournment, a tribunal may accept the diagnosis and prognosis while rationally giving limited weight to the prediction of future fitness. It may take account of repeated adjournments, the age and seriousness of the allegations, the prospect of further delay, and whether a fair hearing remains possible. A hearing requiring assessment of a claimant’s good faith may be unfair in that claimant’s absence where the issue requires oral evidence and cross-examination.

The claimant brought claims including race discrimination, protected-disclosure detriment, unfair dismissal, wrongful dismissal and holiday pay. Following previous adjournments and an earlier successful appeal, the Employment Tribunal struck out the claims after accepting medical evidence that the claimant could not conduct the forthcoming hearing and sought a further six-month adjournment.

The Tribunal held that a fair hearing was no longer possible because of the prolonged delay, the uncertainty of future fitness, and the fact-sensitive allegations. The claimant appealed, alleging perversity and failures to consider relevant matters and the effect of strike-out on him.

1. Appeal dismissed. The Employment Tribunal’s decision to strike out the claims was within the range of reasonable responses and was not perverse.

2. The Employment Appeal Tribunal could interfere only if the strike-out decision was Wednesbury unreasonable. The governing exercise was an overall assessment of fairness. The claimant did not have exclusive claim to the fairness considerations; the respondent, those affected by serious unresolved allegations, and the efficient use of tribunal resources also mattered.

3. The Tribunal had accepted the medical evidence concerning diagnosis and the claimant’s present inability to conduct the hearing. It was nevertheless entitled to assess the weight of the prognosis. The evidence did not assure that he would be fit in six months, and the earlier history provided a rational basis for doubt that a further hearing could then proceed.

4. The Tribunal was entitled to conclude that the claim could not fairly proceed without the claimant. Central issues, including whether alleged protected disclosures were made in good faith, required oral evidence and cross-examination. They could not fairly be resolved from the claimant’s written statement alone. An unless order would have been a contrivance rather than a suitable alternative.

5. The Tribunal had adequately considered the procedural history, the continuing availability of the respondent’s witnesses, the seriousness and age of the allegations, and the effect of its decision. There was no evidence of a distinct impact of strike-out on the claimant which the Tribunal had failed to consider. Strike-out under Rule 37(1)(e), with dismissal for non-attendance under Rule 47, was therefore lawful.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0151_15_2210.
• Employment Tribunal, East London: On 3 February 2014, the Tribunal struck out the claimant’s claims. Its decision was sent to the parties on 12 February 2014.