United Kingdom Employment Appeal Tribunal

Introduction

The legislation

“(7) Subject to paragraph (6), an Employment Judge … may make a judgment or order:-

(d) striking out a claim which has not been actively pursued;

(f) striking out a claim where the Employment Judge …

considers that it is no longer possible to have a fair Hearing in those proceedings.”

The facts

“1.1 The issue in this case was a straightforward one, namely whether the Claimant’s claim for unfair dismissal should be struck out under Rule 18(7(d) of the Tribunal Rules on the ground that it had been actively pursued and/or under Rule 18(7)(f) on the ground that it was no longer possible to have a fair hearing in these proceedings.  The Tribunal Rules are found in Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 (“the Tribunal Rules”).

1.2 The background to this case - which is not in dispute - is as follows.  The Respondent, a company limited by guarantee, is a small organisation which runs a local community centre.  It is run by a Board of Trustees.  The Claimant had been employed as a caretaker by the Respondent until he was dismissed in early February 2010 by the then Vice-chair of the Trustees.

1.3 The Claimant, who was presented from the outset of these proceedings by the Community Trade Union, presented a timely Claim Form alleging unfair dismissal on or around 30 April 2010.  In normal circumstances the Employment Tribunal Service would have been expected to have acknowledged receipt and then written to the Claimant’s representative either accepting or rejecting the claim within a few weeks.  Regrettably in this case this did not happen, even though subsequent investigations by the Tribunal Service have confirmed that the Claim Form was indeed properly served on the Tribunal by the Claimant’s representative within the three month time limit.  This failure by the Tribunal Service may well owe much to the fact that the Nottingham Tribunal Office was at the relevant time piloting a new computer system (“Caseflow”) and experiencing considerable administrative difficulties as a result.  In any event the Tribunal Service took no action in respect of the Claim Form - failing to communicate with either the Claimant or the Respondent or to process the claim in any way.  The Claimant’s representative therefore had no response whatsoever from the Tribunal in the weeks and months which followed the presentation of the claim.

1.4 Unfortunately, the Tribunal’s failure was compounded by the fact that the Claimant’s representative then did absolutely nothing to chase the matter.  In fact, it was only in early February 2012, over 21 months after the Claim Form had been filed, that the Claimant’s representatives finally contacted the Tribunal Service asking what had had happened in respect of the claim and enclosing a further copy of the Claim Form.  At this point the Claim Form was accepted and served on the Respondent - which of course should have happened back in May 2010.  As a result the first time the Respondent was alerted to the fact that a claim had been made against it was two years after the Claimant had been dismissed.  A Response was subsequently entered resisting the claim but also applying to have the matter struck out on the grounds set out in paragraph 1.1 above.”

The submissions

The legal principles and conclusions

“10. The legislature gave statutory force to the primary requirements laid down in Birkett v James.  Section 102 of the Courts and Legal Services Act 1990 summarised those requirements as follows:

(a) that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim; and

(b) that the delay

(i) will give rise to a substantial risk that it is not possible to have a fair resolution of the issues in that claim; or

(ii) has caused, or is likely to cause or to have caused, serious prejudice to the respondent.”

“11. At first glance this regulation seems to vest in the Industrial Tribunal an open textured discretion to strike out claims for want of prosecution whenever it thinks fit.  Nobody suggests that such an interpretation would fit the probable legislative purpose.  Bearing in mind that the power of Industrial Tribunals was created in 1980, that is two years after Birkett v James spelt out the criteria applicable to the striking out of applications in the High Court, as well as the draconian nature of the power to strike out, it is inconceivable that the power was intended to be exercised whenever an Industrial Tribunal thought it right to do so.  In my judgment, this Court can only make sense of the general working of reg. 12(2)(f) by treating the requirements of Birkett v James as applicable mutatis mutandis to applications before Industrial Tribunals to strike out claims for want of prosecution.  Moreover, I am not persuaded that the qualification mentioned in the Credit Aid case will work in practice.  The effect of saying that both sides must get on with the case could make it difficult to demonstrate inexcusable delay even in cases involving enormous delay.”

“14. The third issue is whether the Industrial Tribunal was entitled to conclude that the requirement of serious prejudice was established.  It is sometimes possible to infer prejudice from the circumstances in which the cause of action arose and the length of the delay.”