Hasan v Tesco Stores Ltd

Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 37 requires a party to receive an adequate and reasonable opportunity to make representations before a claim is struck out. That opportunity necessarily includes fair advance notice, although no fixed notice period can be read into the Rule.

A finding that a claim has no reasonable prospects of success is only the first stage. The Tribunal must then decide whether to exercise its discretion to strike out. That second-stage discretion is a fundamental safeguard against ending a potentially meritorious claim prematurely, particularly at an early stage where further particulars may be directed.

Discrimination and protected-disclosure claims should not ordinarily be struck out without appropriate enquiry where their apparent deficiencies may be cured by clarification or factual investigation.

The Claimant, acting in person and without the interpreter he had requested, brought claims including unfair dismissal, protected disclosure detriment or dismissal, race and age discrimination, intellectual property rights and other payments.

An Employment Judge struck out every claim at a Preliminary Hearing on the basis that none had reasonable prospects of success. The notice had identified only the intellectual-property, protected-disclosure and unfair-dismissal claims as possible strike-out matters. It gave no notice that the discrimination or other-payments claims might be struck out.

The Claimant appealed against the strike-out decision. The central issues were whether he had been afforded the opportunity required by Rule 37, whether the claims had been assessed too restrictively at a preliminary stage, and whether the Judge had exercised the discretion that follows a finding of no reasonable prospects of success.

1. Appeal allowed. The strike-out of the discrimination and other-payments claims was procedurally unfair and could not stand. Rule 37(2) requires an adequate opportunity to make representations, which necessarily includes notice enabling written or oral representations to be prepared. A warning at the start of the hearing did not cure the complete absence of prior notice, especially for an unrepresented claimant whose first language was not English.

2. There is no prescribed minimum notice period under Rule 37. Reasonableness depends on the circumstances. The 11 days' notice of possible strike-out of the protected-disclosure, unfair-dismissal and intellectual-property claims gave this Claimant a reasonable opportunity to prepare representations on those claims.

3. The Employment Judge applied an unduly restrictive approach to the merits. As stated in Anyanwu, discrimination claims are generally fact-sensitive and should almost invariably be examined on their merits. The same caution applies to protected-disclosure and other claims where central facts are disputed, as explained in Ezsias. At an early hearing involving a litigant in person, the Tribunal should not treat an imperfect claim form as an exhaustive final pleading where clarification or factual enquiry may show a viable claim.

4. Rule 37(1) is permissive. Establishing a ground such as Rule 37(1)(a) does not compel strike-out. Following HM Prison Service v Dolby, the Tribunal must undertake a second-stage discretionary exercise. The failure to do so was a clear error of law. Relevant considerations included the early stage of proceedings, the availability of further particulars and the absence of a respondent application to strike out.

5. The Claim was reinstated, except for the intellectual-property claim, and remitted to the Employment Tribunal for a further Preliminary Hearing.

• Employment Appeal Tribunal: Appeal allowed. The strike-out judgment was set aside save as to the intellectual-property claim, and the matter was remitted for a further Preliminary Hearing.
• Employment Tribunal: Employment Judge Southam, sitting at Watford, struck out all claims in a judgment registered on 19 October 2015. A subsequent application for reconsideration was dismissed.