United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0571/12/KN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 8 January 2013

Judgment handed down on 29 January 2013

Before

HIS HONOUR JUDGE PETER CLARK

MS V BRANNEY

MR J R RIVERS CBE

MR T JAKPA APPELLANT

LONDON UNDERGROUND LTD & OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Striking-out/dismissal

Exceptional case in which, after some 16 days of hearings, the Employment Tribunal was entitled to strike out claim by reason of the Claimant’s conduct of the proceedings rendering a fair trial impossible.

HIS HONOUR JUDGE PETER CLARK

1.            This is an appeal by Mr Jakpa, Claimant before the London Central Employment Tribunal, against the reserved Judgment of a full Tribunal chaired by Employment Judge Pearl, striking out his claims brought against his former employer, London Underground and 3 named employees (the Respondents).  That Judgment was promulgated with reasons on 30 October 2012.  The appeal was sifted to a full hearing on paper by Langstaff P on certain specified grounds attached by my Order dated 23 November 2012, following a directions hearing at which all other grounds of appeal were dismissed.

2.            The ET struck out the claims under ET rule 18(7)(c)(d) and (f), notably ground (f); a fair hearing was, in the view of the ET, no longer possible.

3.            There is a wealth of higher authority stressing the exceptional nature of a strike-out order, particularly once a final hearing is in train: see Blockbuster v James [2006] IRLR 630 and Bennett v LB of Southwark [2002] IRLR 407, both Court of Appeal, to which the ET paid regard in their reasons.  To those cases we would add Abegaze v Shrewsbury College [2010] IRLR 236 (CA) on the need for ETs to carefully analyse the reason why it is said that a fair hearing is not possible.  Whilst a strike-out, depriving a party of a full hearing on the merits of his case is draconic, as Sedley LJ observed in Blockbuster, the ET also had in mind the observations of Lady Smith in Rolls Royce Plc v Riddle [2008] IRLR 873 (see the citation at para. 30 of their reasons).  We respectfully endorse those observations.

The ET decision

4.            This ET was very familiar with the background to the claims of unfair dismissal and race discrimination brought by the Claimant against the Respondents following his dismissal on grounds of redundancy, on the first Respondent’s case.  They had heard the case over some 16 days.  The trigger for the Respondent’s strike-out application was the Claimant’s non-attendance on 11 October (reasons para. 6).  The Claimant was given warning of the hearing of the application on 17 October (continuing to 18 October), both listed hearing days. 

5.            Having considered submissions from both sides the ET concluded that the Claimant’s conduct in seeking to derail the proceedings, for example by refusing to accept an earlier ruling by the ET (unsuccessfully appealed) that the Respondent was not in breach of an earlier disclosure order made by EJ Tayler on 16 February 2012, had rendered continuation of the proceedings unfair on the Respondents, first because Ms Tharoo of counsel, who had had the conduct of their case since the full merits hearing began, was about to go on maternity leave and it would not be reasonable to expect another advocate to pick up the case part-heard and as a result a delayed resumed hearing would result in two material witnesses, Ms Weddell and Mr Wong (the 4^th Respondent) being overseas.  The need for an adjournment of a carefully time-tabled listing was entirely due to the Claimant’s unreasonable conduct of the litigation.

6.            In these circumstances, having rejected the Claimant’s reasons for postponement, his uncertified sickness and problems with his laptop computer, the ET felt driven to strike-out the claims.

7.            We have considered the grounds of appeal permitted to proceed by the President.  First, we do not accept the suggestion that a proportionate response by the ET to the Claimant’s absence was to proceed in his absence.  That does not appear to have been suggested by the Claimant below; indeed, he wished to participate fully in the hearing but, we would add based on the ET’s findings, on his terms only.

8.            Secondly, we see no reason why an ET cannot make findings on the Claimant’s motivation for conducting the proceedings as he did based on their own observations over 16 days.  He had every opportunity to advance submissions opposing the strike-out application on 17-18 October.  Putting him in the witness box added nothing.  Again, we are not aware of any application by the Claimant to give evidence, or by the Respondents to cross-examine him on oath.

9.            Finally, the critical fair trial finding.  We return to the leading judgment of Elias LJ in Abegaze.  That was a case in which, having secured a favourable finding on liability in his race discrimination complaint the Claimant still had not brought the case to a remedy hearing some 6 years later.  The EJ struck out the claim under r18(7)(d) and (f).  The EAT upheld that decision.  However, on further appeal the CA set aside the strike-out order.  Having succeeded on liability it would be an exceptional case where a strike-out depriving him of a remedy could be justified.  A more proportionate order would have been an unless order requiring the claimant to present himself for examination and to make his medical records available to the respondent’s experts.  Non-compliance with the unless order would then lead to an automatic strike-out under r13(2) (subject, presumably to a subsequent application for relief from sanction by way of review).

10.         In our judgment the ET was entitled to take the view that no alternative order short of strike-out was viable without causing injustice to the Respondents (see para. 50).  This was a measured, careful Judgment, following private deliberations in Chambers, by the full ET.  They were well aware of the exceptional circumstances required before such an extreme order was made and on their findings we are satisfied that those rare circumstances existed in this case.  We also bear in mind the frequent warnings from the CA (see, by way of example, per Longmore LJ in Bowater v North West London Hospitals NHS Trust [2011] IRLR 331, para. 19) not to substitute our view for that of the ET.  In our collective view we can see no error of approach by the ET as a matter of law; their conclusion was a proportionate one on the facts found, balancing the interests of both the parties to this litigation.  The strike-out rules exist for extreme cases; this is one such.

11.         For these reasons and more particularly those clearly articulated by the ET, this appeal fails and is dismissed.