Manuel v Eldon Technology Ltd

Where a party facing strike-out requests a hearing, Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires the Employment Tribunal to give that party an opportunity to make representations at a hearing. A request expressed in imperfect language may suffice if, fairly read, it asks for a hearing to determine whether the claim should be struck out. A Tribunal which strikes out without providing the requested hearing acts procedurally unlawfully, irrespective of the possible merits of strike-out on the material then available.

The claimant, a former software engineer, brought complaints including discrimination, victimisation and detriment for protected disclosures following his dismissal for redundancy. The Employment Tribunal made orders for further particulars and later struck out the discrimination complaints for non-compliance.

Before the strike-out decision, the claimant emailed the Tribunal asking that the claims should not be struck out without a case management hearing if the judge considered strike-out appropriate. He appealed the strike-out order. The respondent did not oppose the appeal. The central issue was whether the email was a request for a hearing within Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

1. Appeal allowed. The claimant’s email, though unclearly expressed, was capable only fairly to be read as a request for a hearing before strike-out. It had not been displaced by later correspondence.

2. Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 permits a claim or response to be struck out only after the affected party has had a reasonable opportunity to make representations in writing or, where requested, at a hearing. The request therefore entitled the claimant to present his case orally on whether he had shown cause against strike-out.

3. No hearing was held. Accordingly, whatever the merits of the Employment Judge’s assessment on the information then available, the Judge was not entitled to strike out the discrimination claims. The procedural failure was sufficient to require the appeal to succeed.

4. The strike-out order was set aside. The matter was remitted to the Leeds Employment Tribunal before a different Employment Judge to list a hearing on whether the discrimination claims should be struck out for failure to comply with the earlier orders. The earlier case-management orders, other than the strike-out order, remained in force.

• Employment Appeal Tribunal: allowed the appeal and remitted the strike-out issue to the Leeds Employment Tribunal before a different Employment Judge.
• Employment Tribunal (Leeds): Employment Judge Brain struck out the claimant’s discrimination complaints by order dated 9 October 2014.