Duvenage v NSL Ltd

Under Rule 37(2), the right to request an oral hearing is a safeguard for the party against whom strike-out is sought. The applicant for strike-out has no automatic right to insist on a public oral hearing. A tribunal may determine an application on written submissions where that is fair and appropriate, although an oral hearing may be necessary where the issues require it.

A tribunal may refuse to vary a case-management direction where no interests-of-justice basis is shown. A jurisdictional objection and properly pleaded factual averments do not render a response scandalous, vexatious or unsuitable for a fair hearing. Article 3(c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 excludes a contractual damages claim where employment was continuing when the claim was presented.

The claimant, who remained employed by the respondent, brought Employment Tribunal claims under employment and equality legislation and a claim for damages for breach of the implied term of trust and confidence.

He applied to strike out the respondent’s ET3. An Employment Judge directed that application to be determined on written submissions and later refused to vary that direction. A second Employment Judge refused the strike-out application and then struck out the contractual damages claim for want of jurisdiction under Article 3(c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994.

The claimant appealed those decisions. The central questions concerned the entitlement to an oral public hearing under Rule 37, the exercise of case-management powers, the adequacy of the reasons for refusing to strike out the ET3, and the jurisdictional dismissal of the contractual claim.

1. All four appeals were dismissed. Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 gives the right to request a hearing to the party against whom strike-out is sought. Its natural language and procedural purpose identify that party as the affected party. An applicant seeking to strike out an opponent’s claim or response therefore cannot demand a hearing as of right.

2. Rules 53(1)(c) and 56 require a preliminary hearing dealing with strike-out to be public, subject to the stated exceptions. They do not require every strike-out application to be determined at a preliminary hearing. Rule 37(2) permits determination on written representations unless the affected party requests a hearing. Article 6 of the European Convention on Human Rights was not engaged because striking out the response would not itself determine the claimant’s civil rights or entitlement to relief.

3. Outside the mandatory hearing safeguard, whether an oral hearing is necessary depends on the circumstances. It may be required where disputed factual allegations need evidence, such as allegations relevant to whether a fair hearing remains possible. Here the application depended wholly on the wording of the ET3, making written determination appropriate. The refusal to vary that case-management direction was lawful because no sufficient interests-of-justice basis was shown.

4. The ET3 was a proper response. Acceptance of an ET1 does not prevent a respondent from raising jurisdictional or limitation objections. Pleading factual averments and substantive legal defences gives fair notice of the case to be met; it does not justify strike-out. The reasons refusing strike-out were adequate.

5. The contractual damages claim was correctly struck out. The claimant was still employed when he presented the ET1, so Article 3(c) excluded Employment Tribunal jurisdiction. He had made written representations but had not requested a hearing. The part struck out was sufficiently identified as the ET1 section headed breach of contract.

• Employment Appeal Tribunal: All four appeals were dismissed.
• Employment Tribunal: The strike-out application against the ET3 was refused. The claimant’s contractual damages claim was struck out for want of jurisdiction. No citation for either Employment Tribunal judgment is stated in the judgment.