L. Oyebisi v Hyde Housing Association Ltd

Under rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a party facing strike-out must receive a reasonable opportunity to make representations. That requires fair notice not only that strike-out is sought, but of the grounds relied on. What is reasonable is fact-specific; no fixed notice period applies.

Where strike-out is sought because of a representative’s conduct, procedural fairness is especially important. The claimant must have a proper opportunity to consider the allegations, instruct the representative and decide whether to retain different representation. A rapid, unparticularised application followed by an immediate decision does not satisfy rule 37(2).

The claimant brought employment claims, including allegations of racial and sexual harassment and whistleblowing. At an open preliminary hearing, the Employment Tribunal struck out both claims under rule 37(1)(b), principally because it considered the claimant’s representative to have conducted the proceedings scandalously, vexatiously and unreasonably. It also found that a fair trial was not possible.

The respondent’s strike-out application was raised during the second day of the hearing. The claimant and her representative received, at most, a short email stating that an application would be made. It did not identify its grounds. The claimant appealed on several grounds, including that she had not received a reasonable opportunity to respond as required by rule 37(2).

1. Appeal allowed. The Employment Tribunal’s procedure was fundamentally unfair. Rule 37(2) required it to give the claimant a reasonable opportunity to make representations before striking out her claims.

2. The rule does not prescribe a fixed period of notice. Whether the opportunity is reasonable depends on the circumstances. However, notice must identify both the fact that strike-out is sought and the basis on which it is sought. The short notice in this case did neither adequately.

3. The representative first learned of the substantive grounds while the respondent made its oral application. He then had to respond immediately, without an opportunity to discuss the application with the claimant. The Tribunal did not establish whether either had received or considered the email which referred only to an application.

4. The defect was particularly serious because the claims were struck out for the representative’s past conduct and an assessment of his future conduct. The claimant should have been able to consider whether to retain that representative, obtain alternative representation or act in person. Immediate strike-out in those circumstances had the appearance of a punishment imposed on the claimant for her representative’s conduct.

5. The Tribunal was entitled in principle to consider conduct by a person acting on the claimant’s behalf under rule 37(1)(b). The EAT did not decide whether the finding that a fair trial was impossible was independently erroneous, nor whether the representative’s conduct was outside his authority. Those matters reinforced the procedural unfairness.

6. The EAT could not itself determine the strike-out issue because the missing procedural safeguards could not be recreated on appeal. The case was remitted to a differently constituted Employment Tribunal. The respondent may make such application as it considers appropriate.

• Employment Appeal Tribunal: appeal allowed; the strike-out decision was set aside and the matter remitted to a differently constituted Employment Tribunal.
• Employment Tribunal (London South): on 8 October 2021, Employment Judge Wright struck out the claimant’s claims under rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.