HM Revenue and Customs v Mabaso

A tribunal’s decision on an application to strike out a claim is a judgment. Its reasons must therefore comply with rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. They must identify the issues, relevant findings, applicable law, and the application of that law.

A statement that facts are disputed, without explaining the material disputes or why a claim survives when related claims are struck out, does not give adequate and intelligible reasons. Where inadequate reasons leave more than one outcome reasonably possible, the Employment Appeal Tribunal should remit the matter rather than decide the application itself. A wholly flawed decision may properly be remitted to a freshly constituted tribunal.

The claimant, an Administrative Officer dismissed for gross misconduct following alleged unauthorised access to tax-credit records, brought claims including unfair and wrongful dismissal, race and disability discrimination, harassment, victimisation and failure to make reasonable adjustments.

The Employment Tribunal struck out several discrimination and harassment claims, made a deposit order in respect of the claim under section 15 of the Equality Act 2010, but left other claims live. Its later written reasons for that outcome comprised two short paragraphs.

HM Revenue and Customs appealed against the refusal to strike out, or make deposit orders concerning, the remaining claims. The central issue was whether the Tribunal’s reasons complied with rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the requirement for adequate reasons.

1. Appeal allowed. The Employment Tribunal’s decision on strike-out was a judgment within rule 1(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It was accordingly required to meet the specific requirements for reasons in rule 62(5).

2. The two-paragraph reasons were inadequate. Although they referred to the cautious approach required for strike-out of discrimination claims, they did not identify the governing principles, the material factual issues, any findings, or why the high threshold was met for certain claims but not for others. A bare assertion that facts were disputed could not explain why the employer’s case that the surviving claims had no reasonable prospect of success had been rejected.

3. The reasons also failed to analyse the unfair and wrongful dismissal claims independently. Their apparent dependence upon the discrimination claims meant that the defects in the discrimination analysis affected those conclusions as well. The Appeal Tribunal could not supplement deficient written reasons by inferring what might have been said orally or by examining material that was before the Tribunal.

4. The Appeal Tribunal declined to determine the strike-out and deposit-order applications itself. The pleaded claims had weaknesses, but more than one outcome was reasonably possible because factual issues might require a hearing. Applying the remittal principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the decision was sufficiently flawed that reconsideration should begin afresh.

5. The live claims were remitted to a freshly constituted Employment Tribunal to reconsider the applications for strike-out and/or deposit orders. The claims already struck out remained dismissed.

• Employment Appeal Tribunal: Allowed HM Revenue and Customs’ appeal and remitted the live claims for reconsideration by a freshly constituted Employment Tribunal: [2017] UKEAT 0143_17_2710.
• Employment Tribunal: Struck out certain discrimination and harassment claims, made a deposit order concerning the section 15 claim, and declined to strike out or make deposit orders concerning the remaining claims. Its written reasons were set aside as inadequate.