N Mendy v Motorola Solutions UK Limited & Ors

An Employment Tribunal may not strike out a claim at a private preliminary hearing where Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, rule 56 requires the issue to be determined in public. It must also give the affected party a reasonable opportunity to make representations under rule 37(2).

An amendment application requires a careful balance of all relevant factors, including its nature, delay, prejudice and relative hardship. A tribunal cannot refuse a discrete amendment merely because the existing claim contains many complaints or on an unsupported assumption of delay. A final strike-out determination is a judgment capable of reconsideration.

The claimant appealed two Employment Tribunal decisions. At a private case-management hearing, the Employment Judge struck out specified contractual and wages claims, refused what was treated as an application to add indirect race discrimination, and refused permission to add post-termination victimisation concerning mortgage unemployment insurance.

The Employment Judge later declined reconsideration on the basis that the earlier decisions were case-management orders. In an earlier appeal in the same proceedings, the EAT had held that the claimant had already pleaded indirect discrimination and set aside the effective strike-out of that claim: [2022] EAT 47.

The respondents did not resist this appeal. The central issues were whether the strike-outs were procedurally valid, whether amendment was required or wrongly refused, and whether the strike-out was a reconsiderable judgment.

1. Appeal allowed. The Employment Judge’s strike-out of the contractual and unlawful-deduction claims was set aside. A strike-out is a matter which rule 56 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires to be determined at a public hearing. The case-management hearing was private. Further, the claimant had not been notified that strike-out would be considered and had not been given a reasonable opportunity to make written or oral representations as required by rule 37(2).
2. The refusal of permission to add indirect race discrimination was set aside. The claimant had already pleaded that claim in his Grounds of Complaint. He therefore did not need leave to amend.
3. The refusal of permission to add the mortgage-insurance post-termination victimisation claim was set aside. The Employment Judge failed to apply the required amendment exercise. She did not consider the reason for delay or balance the relevant prejudice and hardship. The size of the existing litigation was irrelevant, and the limited, discrete amendment gave no sufficient basis for an assumed delay. The EAT granted permission to amend rather than remitting the issue.
4. The strike-out determination was a judgment under rule 1(3)(b), not merely a case-management order, and was capable of reconsideration under rule 70. Alternatively, a case-management order could have been reconsidered under rule 29. That ground had no further practical effect after the earlier rulings.
5. The claimant’s late applications to add further appeal grounds were refused. They were not made promptly, lacked an adequate explanation, raised substantive difficulties, and could not fairly be addressed in the allotted hearing time.

There was nothing to remit. The parties were reminded to cooperate under the overriding objective so that the substantive claims could be resolved without undue delay.

• Employment Appeal Tribunal: Appeal allowed; the relevant strike-outs and refusals were set aside, and permission was granted to add the mortgage-insurance victimisation claim: [2023] EAT 71.
• Employment Tribunal: Employment Judge Grewal’s orders dated 13 August 2021 struck out specified pay claims and refused the relevant applications. Her later decision refused reconsideration on the basis that the orders were case-management orders.