Although tribunals have the power to strike out claims in their entirety in certain circumstances, the Employment Appeal Tribunal (EAT) held in Mohammed v Guy’s and St Thomas’ NHS Foundation Trust that the tribunal judge should only have struck out those claims for which Ms Mohammed had failed to provide sufficient particulars.
Basic facts
Ms Mohammed, a clinical research sister at the trust, lodged tribunal claims for race and disability discrimination. Although the factual and race discrimination allegations were reasonably clear in her application, the disability claims were not, nor was it clear what type of discrimination she was claiming. On 27 February 2019, the tribunal ordered her to provide further, and better particulars of the claims identified in the draft list. However, the information provided by her solicitors on 13 March related only to her claim for reasonable adjustments because they said the other claims were properly particularised.
Tribunal decision
The trust applied for – but was refused - an order on 22 March that her claims should be struck out unless she provided further particulars (this is known as an “unless order”). The trust then made another application for an unless order on 13 September. On 13 November, the tribunal told Ms Mohamed that it would consider striking out her claim unless she provided the information within seven days. On 20 November, she asked for an extension of time as she was trying to find alternative solicitors.
On 7 January 2020, the trust made a third application for an unless order seeking further information related to the direct discrimination and discrimination arising from disability claims, to which she objected, arguing that she had already provided the particulars. On 19 March, the trust asked for the hearing that was due to start on 20 April to be postponed as Ms Mohammed had not complied with the order for additional information and because of the Coronavirus pandemic. They also asked for additional information regarding the disability and race claims.
Whilst acknowledging at a telephone hearing on 27 May that Ms Mohammed was struggling to understand the information she needed to provide, the judge made the unless order on the basis that this was “part of the tribunal process” and was neither “onerous” nor “unreasonable”. As Ms Mohammed did not comply with the order by 8 July, her complaint was struck out in its entirety, even though parts of the claim had been particularised.
She appealed, arguing that her claims were sufficiently particularised.
Relevant law
Rule 38(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that if an unless order is “not complied with by the date specified, the claim or response, or part of it, shall be dismissed without further order”.
EAT decision
Allowing the appeal, the EAT held that although a tribunal can strike out a claim in its entirety, it is only appropriate in situations where there has been “serious ongoing default” in compliance with the orders that suggests that the claimant was basically refusing to engage with the tribunal process and that the tribunal had expressly set out why such a “draconian order” was necessary.
However, in this case, the judge did not direct herself to rule 38 and had failed to consider striking out just those part/s of the claim that were non-compliant. As Ms Mohammed had pointed out in her appeal, she had not been asked for further particulars of her harassment claim, nor the detriment relied on as part of her victimisation claim prior to 20 April. In addition, her claims of direct race discrimination and failure to make reasonable adjustments were already substantially particularised.
As there was nothing to suggest that the employment judge considered making an order that applied only to the complaints for which she had failed to provide further particulars and had not considered why the much more draconian order that she made was proportionate, the EAT concluded that the unless order could not stand.