Nkechi Leeks v University College London Hospitals NHS Foundation Trust

A former employee is not automatically a “lost” witness merely because they have left the employer’s employment. Before striking out a claim for inability to have a fair hearing, an Employment Tribunal must assess the witness’s likely evidence, available documents, alternative witnesses, continuing contact, willingness to attend and the availability of a witness order.

Under Employment Tribunal Rules 2013, refusal to take part in voluntary judicial mediation or judicial assessment can, in an appropriate case, amount to unreasonable conduct for costs purposes. The assessment depends on all the circumstances and must respect the voluntary and without-prejudice nature of those processes.

The claimant brought claims of public interest disclosure detriment and disability discrimination after conditional job offers were withdrawn. Her claims had a lengthy and difficult procedural history.

In 2022, the Employment Tribunal found that the claims had not been actively pursued and struck them out. Its principal reason was that a key respondent witness had left employment, so that a fair hearing was no longer possible. It also rejected the claimant’s costs application on the basis that refusal to enter judicial mediation or assessment could not be unreasonable conduct.

The claimant appealed both rulings. The central issues were whether departure from employment made the witness unavailable for fair-trial purposes, and whether refusal to engage in voluntary judicial ADR could ever found a costs award.

1. Appeal allowed. The strike-out decision and the costs decision were remitted to the same Employment Tribunal for redetermination.

2. The Tribunal’s unchallenged finding of inordinate and inexcusable delay meant that it was entitled to consider whether there was a substantial risk that a fair trial could not take place. Strike out remains a discretionary and proportionate remedy. A fair trial must occur within a reasonable period, and fairness may include the proper use of tribunal resources.

3. However, the Tribunal erred by treating a former employee as a lost witness simply because that person had left the respondent’s employment. A former employee may give evidence voluntarily, and attendance may be secured by a witness order. The Tribunal needed evidence and findings about the witness’s identity, evidence, elapsed time, any witness statement, contemporaneous documents, alternative witnesses, contact details, willingness to assist, ability to obtain a witness order and any reason to think the witness was adverse to the respondent.

4. The Tribunal had considered none of those matters. It had not identified the witness or assessed whether the asserted prejudice affected both claims. Its subsidiary reference to the effect of delay on other witnesses’ recollections could not sustain the decision without a similarly evidence-based assessment. The EAT could not conclude that strike out was the only possible result.

5. The costs decision also contained an error of law. Rule 76 of the Employment Tribunal Rules 2013 does not create an absolute exemption for refusal to participate in judicial mediation or judicial assessment. Whether refusal is unreasonable depends on all the circumstances. The voluntary, confidential and without-prejudice character of those processes requires particular care, and the applicant bears the burden of showing why the refusal was unreasonable. A costs sanction against a successful party will be exceptional.

6. There was little evidence about the refusal in this case. The claimant faced an uphill struggle, but the EAT could not say that only one answer was possible. Both matters were remitted, with case management left to the Employment Tribunal.

• Employment Appeal Tribunal: allowed the appeal and remitted the strike-out and costs issues to the same Employment Tribunal.
• Employment Tribunal: in August 2022, struck out the claims under Rule 37 and rejected the claimant’s costs application. An earlier strike-out application had been refused in 2019 because a fair trial remained possible.