Daly v Northumberland Tyne and Wear NHS Foundation Trust

A strike-out for no reasonable prospect of success is a draconian step. In discrimination and whistleblowing claims, it will rarely be appropriate where the central facts, including the employer’s reasons for acting, are disputed and require evidence.

Unreasonable conduct does not automatically justify strike-out. The tribunal must identify a proper basis for finding that a fair trial is no longer possible and must consider proportionate alternatives, including further particulars and a deposit order. Unsupported assumptions about faded memories or unfairness cannot justify depriving a claimant of a merits hearing.

The claimant, a registered nurse, brought claims for detriments and dismissal for protected disclosures. The Employment Tribunal struck out all but the unfair-dismissal claim, which the respondent conceded. It held that most detriment complaints were inseparable from dismissal, barred by the Henderson principle, or out of time. It struck out two complaints concerning the provision of employment references both for no reasonable prospect of success and for unreasonable conduct of the proceedings.

The claimant appealed the strike-outs. The central issue was whether the Tribunal could strike out the four remaining detriment complaints at a preliminary stage.

1. Appeal allowed in part. The appeal failed in relation to the first two detriments. The Tribunal was entitled to regard the equality-officer complaint as barred by the Henderson principle and, in any event, out of time. The sickness-management complaint was also admittedly out of time. The claimant had neither advanced nor substantiated an argument that it had not been reasonably practicable to present either claim in time.

2. The appeal succeeded in relation to the two reference-related detriments. Under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a strike-out for no reasonable prospect is exceptional in fact-sensitive whistleblowing claims. There was an arguable delay of six or seven weeks in supplying references. The alleged delay, lack of co-operation and the reason for the respondent’s conduct raised disputed factual questions which could not fairly be resolved without evidence.

3. The alternative strike-out for unreasonable conduct was also erroneous. Although the claimant had pursued many hopeless complaints and had been given opportunities to particularise his case, the Tribunal gave no evidentially supported explanation for its conclusion that a fair trial of the viable reference claims was no longer possible. The available correspondence could provide a paper trail, and disclosure had not been attempted.

4. Strike-out was disproportionate. The Tribunal should have considered less severe measures, including specified further particulars and a deposit order. The reference claims were remitted to the same Employment Judge to determine whether a deposit order should be made and, if so, its amount. Under Rule 34A(2)(a), the claimant was awarded reimbursement of 50 per cent of his fees.

• Employment Appeal Tribunal: allowed the appeal concerning detriments 3 and 4, remitted those claims for consideration of a deposit order, and dismissed the appeal concerning the other detriments: [2016] UKEAT 0109_16_0707.
• Employment Tribunal: Employment Judge Garnon struck out the detriment claims in a decision promulgated on 4 September 2015, while permitting the unfair-dismissal claim to proceed.