Tabinas v Kusco-Kingston University Service Co Ltd

A tribunal considering strike-out for failure actively to pursue a claim must give sufficient reasons to show that it considered the party’s response to the proposed strike-out. It must address whether there was a failure actively to pursue the case, whether any explanation was adequate, and whether strike-out was proportionate or a lesser case-management order would fairly suffice.

Strike-out dismisses the claim without investigating its facts. Clear reasons are therefore required both to inform the party and to permit appellate review.

The Claimant brought claims of race discrimination and victimisation. After failing to co-operate with preparation for the listed hearing, he was warned that his claim might be struck out for not being actively pursued. He responded promptly, relying on ill health and providing some material.

Employment Judge Hildebrand struck out the claim under Rule 37(1)(d), giving brief reasons that the Claimant had made no sufficient representations. The Claimant appealed. The central issue was whether those reasons showed that the Employment Judge had considered the response and the proportionality of strike-out.

1. Appeal allowed. The Employment Judge’s reasons were insufficient. Although the Judge was entitled to initiate consideration of strike-out after the Respondent reported the Claimant’s lack of engagement, the Judge had to consider the Claimant’s response and provide reasons adequate for the Claimant and the Employment Appeal Tribunal to understand the decision.

2. For strike-out under Rule 37(1)(d) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the tribunal should ask whether the case has not been actively pursued. If so, it should consider any explanation, assess whether it is adequate, and then decide whether strike-out is proportionate or whether another order can secure a fair hearing for both parties.

3. The reasons did not show that the Employment Judge had considered the Claimant’s explanation concerning his health. Nor did they reveal whether the necessary proportionality assessment had been undertaken. It was unnecessary to determine authorities concerning inordinate delay because the stated basis for the order was failure actively to pursue the claim.

4. The Burns-Barke procedure was unsuitable. The reasons were so terse that further reasons would amount to supplying reasons for the first time rather than clarifying existing reasons.

5. The case was remitted to a fresh Employment Tribunal for a Preliminary Hearing, case-management orders and a new Full Hearing date. The Claimant was required to comply promptly with future orders or promptly explain and substantiate any health-related inability to do so.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the matter to a fresh Employment Tribunal.
• Employment Tribunal, London (South): Employment Judge Hildebrand struck out the claim under Rule 37(1)(d) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013; reasons were sent on 3 December 2013.