Sud v London Borough of Hounslow

A tribunal may strike out a claim where a claimant has deliberately misled it and tampered with evidence, and that conduct has destroyed the trust in the claimant’s veracity necessary for a fair trial. The power is not punitive. It is justified where, having applied the overriding objective and proportionality, the claim is no longer fairly triable.

An appeal may also be determined in an appellant’s absence where the appellant knew of the hearing, supplied no adequate basis for an adjournment, and it is just to proceed.

The claimant brought claims including unfair dismissal, disability discrimination and detriment for protected disclosures. Shortly before an eight-day hearing, she obtained a postponement on asserted medical grounds.

At a later pre-hearing review, the Employment Tribunal found that she had deliberately misled the Tribunal about psychiatric evidence supporting the postponement and had altered the date on a medical document. It held that her credibility was central to the merits and that a fair trial was no longer possible. It struck out the claims under Rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

The claimant appealed the strike-out. She also renewed an application for permission to appeal a costs contribution order arising from the adjournment.

1. The appeal was dismissed. The Employment Judge was entitled, and on the facts right, to conclude that the claim was no longer fairly triable. The claimant had deliberately misled the Tribunal about medical evidence used to obtain a postponement and had manually altered the date of a medical document.

2. Those were serious matters because the substantive claims depended heavily on the claimant’s evidence, including evidence concerning her health and alleged disability. The conduct fatally undermined the Tribunal’s trust in her veracity. Strike-out was therefore justified because a fair trial was no longer possible, rather than as punishment for unreasonable conduct: see the Employment Judge’s reasoning at [37c]–[39], upheld at [33].

3. The Employment Judge had correctly treated strike-out as a sparing and proportionate measure. Although non-compliance with orders and delay were relevant, the decisive ground was the impossibility of a fair trial after the deliberate misleading conduct.

4. The Tribunal properly proceeded in the claimant’s absence. She knew of the hearing, her late medical material did not justify an adjournment, and she had failed to comply with directions. The approach was consistent with Andreou v Lord Chancellor’s Department [2002] IRLR 728.

5. The renewed Rule 3(10) permission application concerning the Employment Tribunal costs order was dismissed. The Employment Judge had properly considered a costs order and, though not required to do so, had taken account of the limited information about means.

6. Costs of the appeal were awarded for the claimant’s wholly unreasonable conduct, including repeated late adjournment applications, non-attendance and failures to comply with directions. The amount was corrected after the hearing to £2,500 plus VAT.

• Employment Appeal Tribunal: dismissed the appeal against the strike-out and dismissed the renewed Rule 3(10) application for permission to appeal the costs contribution order.
• Employment Tribunal: Employment Judge Morton struck out the claimant’s claims under Rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. A later decision ordered her to contribute £18,458.50 towards the respondent’s adjournment costs.