Although tribunals should approach applications for strike out with caution because of the risk that something might emerge later in the process which undermines that decision, the EAT held in Kaul v Ministry of Justice and ors that did not mean that they should not undertake a realistic assessment of the facts “where the circumstances of the claim permit”.
Basic facts
Ms Kaul, a circuit judge, had raised a grievance against three other judges for failing to support her during and after a trial, as well as a grievance against three members of staff allegedly for bullying and harassing her. Both grievances arose from events that had started in November 2015, shortly after her appointment as a circuit judge. The first grievance was considered not to be well founded and the second was deemed to be out of time.
After her appeal was rejected, Ms Kaul lodged a tribunal claim alleging discrimination arising from disability, victimisation and harassment (among other things) in terms of how the grievances had been handled and, specifically in the case of the staff grievance, the conclusion that it was out of time. In particular, she argued that a request by her employer on 19 July 2019 to provide a schedule listing her complaints and a letter dated 30 October 2019 asking her to set out why her grievances should not be dismissed as out of time amounted to victimisation, indirect disability discrimination and a failure to make a reasonable adjustment. Finally, she argued that part of a letter dated 14 February 2020 refusing her appeal amounted to harassment on the grounds of disability.
Her employer asked the tribunal to strike out all Ms Kaul’s claims under Regulation 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 on the basis that they had no reasonable prospect of success.
Tribunal decision
Although the judge did not strike out Ms Kaul’s complaint that her employer should have decided the staff grievance on its merits rather than just rule it out of time, he concluded that the remainder of the complaints had no reasonable prospect of success and struck them out under regulation 37(1)(a).
Ms Kaul appealed against the second part of the decision on the basis that the judge had not applied regulation 37 properly. Relying on the “general tenor” of the relevant case law, she argued that it should be “more rare rather than common” for judges to decide that a claim has no reasonable prospect of success on its facts.
EAT decision
The EAT agreed with Ms Kaul that tribunals should approach applications for strike out with caution, not least because the litigation process will usually not have been completed and tribunals therefore run a risk that something might emerge later in the process which then undermines the decision. However, it also acknowledged that just because tribunals should approach these applications with caution, that did not mean that they should not undertake a realistic assessment of the facts “where the circumstances of the claim permit”.
In this case, the claims struck out by the judge rested on undisputed matters, including the 19 July and 30 October 2019 letters and part of the 14 February 2020 letter.
The EAT concluded that “the matters complained of were apparently ordinary events that might occur in the course of any grievance process. No part of the claimant’s case explained why those events should not be taken at face value. In these circumstances, the decision that the claims had no reasonable prospect of success was one reasonably open to the employment judge”.
It, therefore, dismissed the appeal.
Comment
This case makes clear the wide-ranging powers available to the employment tribunal to assess whether a claim has reasonable prospects of success and that the bar is a high one. However, employers can raise the issue that a claim is vexatious or lacks merit, and the tribunal has the authority to strike out a claim at an early stage of proceedings.