D v Greater Glasgow Health Board

A tribunal may strike out a claim where a fair hearing is no longer realistically possible, but must also consider whether strike-out is proportionate and whether a lesser measure could secure a fair hearing. The tribunal’s duty to assist a litigant in person has limits where the claimant cannot participate in the adversarial process. In assessing the prospect of a hearing, the tribunal considers the claimant’s position and medical prognosis when the strike-out application is decided. A claimant’s lack of confidence in the tribunal process should support strike-out only in an extreme case.

Ms D was employed by Greater Glasgow Health Board from 2015 and was dismissed in April 2019 after a period of ill health absence. She brought claims including unfair dismissal, disability and race discrimination, and whistleblowing detriment. Her PTSD and other health conditions were exacerbated by the proceedings, and the medical evidence indicated that she was unlikely to attend a final hearing.

In February 2023, the Employment Tribunal refused Ms D’s application to strike out the response but struck out her claim under rule 37(1)(e) of the ET Rules, concluding that a fair trial was no longer possible. Ms D appealed. After the sift and a preliminary hearing, the issue before the Employment Appeal Tribunal was whether the tribunal had erred in striking out a claim that was very unlikely to reach a hearing, including whether it had adequately considered proportionality and lesser measures.

1. The appeal was dismissed. The Employment Tribunal’s reasons, read with its assessment of the evidence and procedural history, adequately explained why the claim could no longer be tried fairly. The sift criticism of the tribunal’s reasoning did not establish an error of law.

2. In assessing whether a final hearing was realistically possible, the tribunal was correct, and required, to consider the position when the strike-out application was decided, including the medical prognosis. The evidence showed no realistic prospect of Ms D being ready for a hearing in the foreseeable future.

3. The tribunal was entitled to weigh the effect of the delay on the respondent and witnesses, the substantial disputes about what had occurred, and Ms D’s lack of confidence in the process. Fairness was owed to both parties, and a hearing on written evidence would not have been satisfactory. The judge cautioned that lack of confidence in the tribunal system should be a reason for strike-out only in an extreme case; this was such a case.

4. The duty to assist a litigant in person, described in Cox v Adecco and Others UKEAT/0339/19/AT, has limits. Where a claimant cannot participate in the adversarial process, strike-out is the proper course unless a lesser measure can secure a fair trial. Even where a fair trial is impossible, the tribunal must assess whether strike-out is proportionate and consider lesser measures. It did so here: a stay was unlikely to help given the prognosis, and no lesser sanction remained available. The facts were close to Riley v Crown Prosecution Service [2013] IRLR 966, where there was no realistic alternative to strike-out when the claimant could not attend or participate for the foreseeable future.

5. The appeal concerned a discretionary decision. The broad scope for reasonable disagreement described in Harris v Academies Enterprise Trust UKEAT/0097/14/KN and Governing Body of St Albans Girls’ School and Anor v Neary [2010] ICR 473 applied. As the tribunal had properly exercised its discretion, there was no basis to interfere.

1. Employment Appeal Tribunal: The appeal was dismissed. At the sift, HHJ Auerbach dismissed the grounds as unarguable but listed the matter for a preliminary hearing. At that hearing, Lord Colbeck allowed the strike-out challenge to proceed.
2. Employment Tribunal: In February 2023, the tribunal refused the claimant’s application to strike out the response and struck out her claim under rule 37(1)(e) of the ET Rules because a fair trial was no longer possible.