T v Royal Bank of Scotland Plc

A tribunal may strike out a claim for non-compliance with orders only after considering all the circumstances, including whether a fair trial remains possible and whether a lesser, proportionate measure would suffice. Save in exceptional cases of conduct sufficiently serious to forfeit the right to a hearing, strike-out is not justified where a fair trial can still be achieved.

A tribunal must not treat the choice as all or nothing. It may confine the trial to adequately pleaded claims, refuse late amendments, restrict reliance on late documents or new allegations, and provide for existing particulars to stand as evidence in chief. The stringent and draconian nature of strike-out requires a reasoned conclusion that those measures cannot fairly enable a trial.

The claimant was dismissed after sickness absence and brought claims for unfair dismissal and disability discrimination. An earlier strike-out had been set aside by the Employment Appeal Tribunal, and the claims were remitted.

Following further case-management orders, the Employment Tribunal struck out the entire claim under rule 37(1)(c) and (e) of the Employment Tribunals Rules of Procedure 2013. It found serious non-compliance, unclear issues and that a fair trial could not take place either at the listed liability hearing or later.

The claimant appealed. The central issue was whether, despite his incomplete compliance and difficult conduct of the proceedings, the claims were incapable of fair trial or whether proportionate case-management measures short of strike-out remained available.

1. Appeal allowed. The strike-out decision was quashed and replaced with a decision declining to strike out the claims as at February 2019.

2. Under rule 37(1) of the Employment Tribunals Rules of Procedure 2013, satisfaction of a specified ground gives a tribunal a discretion, not an obligation, to strike out. It must apply the overriding objective, consider whether a fair trial remains possible, and consider lesser and proportionate measures. Save in exceptional circumstances, a claim capable of fair trial should proceed.

3. The Employment Tribunal was entitled to find substantial non-compliance and to be sceptical about further positive orders requiring the claimant to provide clarification. However, it was not reasonably open to conclude that all claims were incapable of fair trial. The unfair-dismissal and dismissal-related Equality Act claims were sufficiently clear. The original claim, earlier Scott schedules and particulars also sufficiently identified the principal reasonable-adjustment complaints.

4. The tribunal could have confined the liability hearing to adequately pleaded complaints, declined to entertain the late expanded schedule or any amendment, limited the claimant to documents already disclosed, and restricted him from relying on unheralded factual allegations. It could have required a prompt witness statement, with the existing particulars and schedules standing as evidence in chief if he defaulted. Those measures would not have been unfair to the respondent.

5. Incomplete disclosure concerning remedy did not itself prevent the listed liability-only hearing from proceeding. Nor was there a proper evidential basis at that date for finding that delay had made a fair trial impossible at every future hearing.

6. Conduct or non-compliance may exceptionally justify strike-out although a fair trial remains possible, but this requires a specific conclusion and reasons showing why the conduct is sufficiently serious in nature or effect. The Employment Tribunal made no such finding. Its criticism of the claimant’s conduct did not reasonably establish that he had forfeited the right to have an otherwise triable claim heard.

Further case-management directions were left to the Employment Tribunal. Any future strike-out application would have to be a fresh application founded on developments after February 2019.

• Employment Appeal Tribunal: appeal allowed; the February 2019 strike-out was quashed and a decision declining strike-out as at that date was substituted.
• Employment Tribunal, Birmingham: struck out the claimant’s unfair-dismissal and disability-discrimination claims under rule 37(1)(c) and/or (e) of the Employment Tribunals Rules of Procedure 2013.
• Earlier Employment Appeal Tribunal appeal: an earlier strike-out was allowed and the matter remitted; no citation is stated in the judgment.