Arriva London North Ltd v Maseya

A strike-out for scandalous, unreasonable or vexatious conduct under Rule 37(1)(b) is exceptional. The tribunal must exercise its discretion judicially. It must first determine whether the conduct has made a fair trial impossible. If a fair trial remains possible, proceedings should generally continue because strike-out is not punitive.

Even where a fair trial is impossible, the tribunal must consider whether a less severe and proportionate remedy is available. It must assess the real significance of any pleading clarification, late material or disclosure failure, and the actual prejudice caused. A pleading defect capable of prompt correction, and missing disclosure capable of prompt production, will not ordinarily justify depriving a party of a merits hearing.

The Claimant, who had monocular vision and was disabled within the meaning of the Equality Act 2010, alleged indirect disability discrimination and failure to make reasonable adjustments after his application for employment as a PSV fitter was rejected.

The Employment Tribunal struck out the employer's ET3 under Rule 37(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It considered that the employer had advanced a false defence and had failed materially to disclose a document concerning engineers without PCV licences. It then determined liability, remedy and costs in the Claimant's favour.

The employer appealed. The central questions were whether the Tribunal had been entitled to characterise the defence and non-disclosure as culpable, and whether strike-out was a lawful and proportionate sanction.

1. Appeal allowed. The Employment Tribunal's strike-out, liability, remedy and costs decisions were set aside. The claim was remitted for a full hearing before a freshly constituted tribunal.

2. The Tribunal had fundamentally misunderstood the case. The employer's proposed clarification was that the relevant requirement was to hold, or be capable of obtaining, a commercial vehicle licence. That was the Claimant's own pleaded and evidenced case. Although the ET3 required clarification, there was no evidential basis for finding that the employer had advanced a defence deliberately intended or calculated to mislead, or that its non-disclosure was deliberate.

3. The Tribunal also erred in treating Chapman v Simon [1994] IRLR 124 CA as preventing consideration of the wider requirement. That principle did not apply. Whether an amendment or adjournment was needed depended upon the scope of the clarification and any real prejudice to the Claimant. The Tribunal had not made that assessment.

4. Under Rule 37(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, strike-out required a structured exercise. Following Bolch v Chipman [2004] IRLR 140 EAT and Blockbuster Entertainment Ltd v James [2006] IRLR 630 CA, the Tribunal had to consider whether a fair trial remained possible and, if necessary, whether a lesser and proportionate remedy could secure fairness.

5. A fair hearing was plainly possible. The clarification coincided with the Claimant's case, and the identified document could have been produced promptly. The Tribunal neither explored immediate disclosure, a short adjournment, costs, nor other less drastic measures. Strike-out was therefore disproportionate.

6. The Claimant was ordered to pay the employer's appeal fees of £1,600 under Rule 34A(2)(a). The application for ordinary costs under Rule 34 was refused.

• Employment Appeal Tribunal: appeal allowed; the strike-out and consequential decisions were set aside, and the claim was remitted to a freshly constituted Employment Tribunal for a full hearing.
• Employment Tribunal: Reasons promulgated on 9 November 2015. The employer's response was struck out under Rule 37(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, and the Tribunal awarded the Claimant compensation and costs.