London United Busways Limited v Kamal Hamid Dankali

The Employment Appeal Tribunal considered an appeal against an employment tribunal decision refusing the respondent's application to strike out a claimant's claims under rule 37 of the Employment Tribunals Rules of Procedure 2013. The primary issues were whether the tribunal should have investigated the basis of a trade union representative's asserted blanket oral authority to continue proceedings in the claimant's absence, and whether the tribunal ought to have considered the common law doctrines of maintenance and champerty. The EAT held that the tribunal had not been required to consider maintenance and champerty because the issue had not been sufficiently raised on the material before it, but that the tribunal erred by simply accepting the representative's uncorroborated assertion of blanket authority without taking further steps to investigate or to require evidence, which was unfair to the respondent. The tribunal's operative decision refusing strike out was quashed and the matter remitted for further consideration by the tribunal.

Background and nature of the proceedings:

The claimant, formerly employed as a bus driver and TUPE-transferred into the respondent's employment, presented claims including unfair dismissal, disability and race discrimination and unpaid notice. The claimant's conduct of the case was recorded as being by a trade union representative (PTSC) rather than by a solicitor; the full merits hearing was listed for July 2021 but, after the claimant became uncontactable, the employment tribunal directed a preliminary hearing to consider a strike-out application by the respondent.

Procedural posture and relief sought:

• The respondent applied to strike out under rule 37 on grounds including that the claim was not being actively pursued and that it would be unfair to proceed in the claimant's absence.
• The tribunal (EJ Nicolle) declined to strike out and directed the matter to be relisted to proceed whether or not the claimant attended. The respondent appealed that preliminary decision to the EAT.

Issues for the court:

• Whether the employment tribunal should have required proof (for example written authority or sworn evidence) of the union representative's asserted blanket oral authority to conduct the claim in the claimant's absence.
• Whether the tribunal should have considered the common law doctrines of maintenance and champerty in deciding whether the representative's authority was valid or enforceable.

Court's reasoning and findings:

• The EAT held that an employment tribunal is not required to consider every possible legal issue unless it is sufficiently raised or plainly obvious from the material before it. The maintenance and champerty point had not been sufficiently and clearly put before the tribunal such that the tribunal erred in failing to consider it; accordingly, the EAT did not decide the broader legal question of how those doctrines apply in the employment tribunal context.
• By contrast, the EAT found that the tribunal did err in process by accepting the representative's uncorroborated claim of blanket authority and directing the case to proceed without taking any meaningful investigative steps. Given the unusual circumstances (the claimant being incommunicado, directions not complied with, and an asserted informal blanket authority with nothing in writing), the tribunal should have sought further evidence or otherwise investigated the position before refusing strike out. The absence of such steps made the tribunal's approach unfair to the respondent.
• The EAT quashed the tribunal's preliminary decision refusing strike out and remitted the matter to the employment tribunal for it to revisit the position, including any fresh application to strike out and appropriate case-management directions.

Practical note: the EAT declined to give general guidance on every circumstance that might put a tribunal on enquiry about maintenance or champerty, and it refrained from deciding whether those doctrines apply in the same way in employment tribunals given the narrow dispositional remit of the appeal.

Appeal allowed in part. The EAT quashed the employment tribunal's decision declining to strike out and remitted the matter to the tribunal because the judge erred in accepting an uncorroborated assertion by the claimant's trade-union representative of a blanket oral authority to conduct the claim without taking further investigatory or evidential steps. The EAT concluded the tribunal did not err in failing to consider maintenance and champerty because that issue was not sufficiently raised on the material before the tribunal.

Claim presented to the employment tribunal 3 June 2020; case management hearings in November and December 2020; full merits hearing listed for 27–29 July 2021 vacated by Employment Judge F. Spencer who raised the possibility of striking out; preliminary hearing before Employment Judge Nicolle on 6 October 2021 in which the tribunal refused to strike out; respondent appealed to the Employment Appeal Tribunal where initial consideration by HHJ Shanks found no arguable grounds; a rule 3(10) hearing before HHJ Wayne Beard permitted limited grounds to proceed; final EAT determination by His Honour Judge Auerbach on 1 September 2023 quashing the tribunal's decision and remitting the matter to the employment tribunal.