Leslie v Imperial College Healthcare NHS Trust

A tribunal may exceptionally strike out a claim during a merits hearing under Rule 37(1)(a) where the claimant’s informed refusal to participate means that the claim has no reasonable prospect of success. The claimant must first receive the reasonable opportunity to make representations required by Rule 37(2).

Whether that opportunity was reasonable depends on the circumstances. Material matters included a clear warning of the consequence of non-participation, representation by an experienced representative, offers of a short adjournment which were unequivocally refused, and no indication that further time would alter the position.

Written reasons must be assessed in light of the nature of the judgment. Concise reasons may suffice where they explain why the claim was dismissed and permit the parties to understand the decision.

The claimant brought claims including discrimination, harassment, victimisation, whistleblowing detriment and constructive unfair dismissal. During the third day of a seven-day final hearing, the Employment Tribunal refused his application to strike out the respondent’s response and his request for an adjournment to make an immediate appeal.

The claimant and his representative then stated that he would not continue or give evidence. The Tribunal warned that it would dismiss the claims if he did not participate, and twice offered a short adjournment. Both offers were refused. The Tribunal dismissed the claims.

The claimant appealed, alleging that the dismissal was unlawful or perverse and that the reasons were not compliant with Meek or Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

1. Appeal dismissed. The Employment Tribunal’s final disposal of the claims was a judgment, not merely a case-management order. Although it did not use the label, it was in substance a strike-out decision under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

2. The Tribunal proceeded under Rule 37(1)(a). Once the claimant declined to participate or give evidence, it was accepted that none of his claims could succeed. A mid-hearing strike-out under that provision is ordinarily exceptional. This was exceptional because the Tribunal was not prematurely deciding the merits on incomplete evidence; the claimant’s own refusal meant that there would be no evidence capable of establishing his claims.

3. The claimant had a reasonable opportunity to make representations for Rule 37(2) purposes and was not denied a fair hearing. He was warned of the consequence of refusing to continue. He was represented by an experienced employment-law consultant, whose position the Tribunal was entitled to treat as taken on the claimant’s instructions. The Tribunal offered two ten-minute adjournments, first to the representative and then to the claimant, and both were unequivocally refused.

4. Although a longer adjournment might, in hindsight, have been sensible, the Tribunal was not required as a matter of law to impose one. Neither the claimant nor his representative sought further time or suggested that it would enable the hearing to continue. Their stated position showed that they remained intent on challenging the earlier procedural rulings rather than participating in the hearing.

5. The Tribunal’s concise reasons were adequate. In this context it was unnecessary to set out the underlying disputed facts, because dismissal followed from non-participation and the resulting absence of evidence. Rule 62(5) is applied proportionately to the nature of the judgment. The omission of an express statement of the applicable law was undesirable but not material, since the basis of the Tribunal’s reasoning and its lawful application could be identified.

6. The respondent’s costs application was refused. The permitted appeal grounds were arguable, and the claimant’s unsuccessful disclosure application and non-compliant bundle did not, in the circumstances, establish a misconceived appeal or unreasonable conduct.

• Employment Appeal Tribunal: appeal dismissed: [2020] UKEAT 0204_19_0701.
• Employment Tribunal, London (Central): on 22 October 2018, dismissed the claimant’s claims after he indicated that he would not continue to participate or give evidence.