Anthony Boateng v Moss Bros Group Limited

Under rule 37(1)(e), whether a claim can still be fairly tried is a fact-sensitive evaluative judgment. A tribunal must consider practical measures that could adequately remove or mitigate the risk of unfairness before adopting the draconian remedy of strike-out. It may nevertheless strike out where the unavailability of material witnesses, viewed against the nature and age of the allegations, places the respondent at a material and irremediable disadvantage.

The EAT will not interfere with that evaluative judgment where the tribunal considered the relevant evidence and reached an available conclusion. A renewed postponement application may properly be refused where there is no material change since an earlier refusal and the asserted prejudice depends on uncertain future events.

The claimant brought complaints of race and religion discrimination, unfair dismissal and holiday pay after his 2019 dismissal. The discrimination allegations concerned about 30 alleged incidents from 2017 onwards.

Delay arose principally during the respondent's CVA and also during the Covid-19 pandemic. In September 2023, the Employment Tribunal struck out the Equality Act complaints under rule 37(1)(e) of the Employment Tribunal Rules of Procedure 2013, finding that they could no longer be fairly tried because many relevant witnesses were unavailable. It retained the unfair-dismissal and holiday-pay claims.

At the February 2024 merits hearing, the tribunal refused the claimant's renewed application to stay or postpone those remaining claims and dismissed them. The claimant appealed both the strike-out and postponement decisions.

1. Both appeals were dismissed. The strike-out tribunal had applied the correct approach under rule 37(1)(e) of the Employment Tribunal Rules of Procedure 2013. The question is highly fact-sensitive. A tribunal must assess whether circumstances mean that a fair trial is no longer possible, including whether a practical and reasonable alternative could sufficiently mitigate the risk of unfairness.

2. That inquiry does not require certainty that a future fair trial is impossible in every case. Where delay, lost evidence or missing witnesses create a sufficiently serious risk of material prejudice, the tribunal may make an evaluative judgment that strike-out is warranted. The EAT may interfere only where the tribunal omitted relevant considerations, failed to adopt an obvious reasonable solution, or reached a conclusion no reasonable tribunal could reach.

3. The tribunal had a substantial evidential basis for finding that the respondent could not fairly defend the discrimination complaints. It considered the numerous allegations, their age, the identities and availability of potential witnesses, and the nature of the allegations, many of which required oral evidence and evaluative inferences. It was entitled to conclude that witness orders, documentary material, hearsay evidence, the general burden of proof, and a partial retention of complaints would not provide a fair practical solution.

4. Section 136 of the Equality Act 2010 reinforced rather than answered the respondent's prejudice. If the burden shifted, the respondent could be unable to discharge it without evidence from the persons accused. The tribunal's reference to the dividend received through the CVA was not a material reason for the strike-out.

5. The postponement decision was a discretionary case-management decision. The claimant's fresh application in substance sought reconsideration of an earlier refusal. There had been no material change of circumstances. The tribunal also properly considered the factual overlap and the speculative possibility that findings on unfair dismissal might affect any later remitted discrimination proceedings. Its reasons were sufficient.

• Employment Appeal Tribunal: dismissed the claimant's appeals against the September 2023 strike-out decision and the February 2024 refusal to postpone.
• Employment Tribunal: struck out the Equality Act complaints under rule 37(1)(e) of the Employment Tribunal Rules of Procedure 2013; later refused a stay or postponement and dismissed the unfair-dismissal and holiday-pay claims.