Otehtubi v Friends In St Helier

An Employment Tribunal should strike out a claim only on clear grounds, as a last resort, and on an adequate factual basis. Before doing so, it must be satisfied that the claimant knows of the application and has had a reasonable opportunity to make representations under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

An application for an unless order does not ordinarily justify the Tribunal imposing the more stringent sanction of immediate strike-out of its own motion. Exceptional circumstances would require explanation. A strike-out for failure actively to pursue a claim also requires evidence capable of supporting that ground.

The claimant, a former community support worker, brought claims for unfair dismissal and religious discrimination. Shortly before the listed hearing, the respondent applied for an unless order concerning a schedule of loss and witness statements. The respondent did not copy that application to the claimant.

The Employment Tribunal instead struck out the claims, stating that they had not been actively pursued and that the claimant had not made representations in response to an email from the Tribunal. The claimant appealed. The central issue was whether the Tribunal had lawfully imposed immediate strike-out in those circumstances.

1. Appeal allowed. The Employment Tribunal erred in law by striking out the claim. Strike-out has severe consequences and should be used only on the clearest grounds, as a matter of last resort. The Tribunal must have a clear factual basis and must ensure that fair procedure has been followed.

2. The respondent had sought an unless order, not immediate strike-out. An unless order is governed by Rule 38 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. For the Tribunal to impose, on its own initiative, the more stringent sanction of immediate strike-out would require exceptional circumstances, which it did not identify or explain.

3. The stated ground under Rule 37(1)(d), that the claim had not been actively pursued, had no evidential basis. The respondent had not advanced that ground. The correspondence available to the Tribunal indicated that the claimant was actively pursuing the proceedings.

4. The Tribunal could not have been satisfied that the claimant had received a fair procedure or a reasonable opportunity to make representations under Rule 37(2). The respondent had failed to copy its application to the claimant, contrary to Rule 92. The Tribunal's deadline was unreasonably short and its email did not clearly warn that non-response would result in strike-out.

5. It was unnecessary to determine whether the claimant had received the Tribunal's email or to resolve factual disputes about her witness statement. Those matters could not safely be determined on the material before the Appeal Tribunal.

• Employment Appeal Tribunal: allowed the claimant's appeal against the Employment Tribunal's strike-out judgment of 27 November 2015.
• Employment Tribunal: struck out the claimant's unfair-dismissal and religious-discrimination claims.