Although tribunals have the power to strike out all or part of a claim, the Employment Appeal Tribunal (EAT) held that the tribunal in T v Royal Bank of Scotland (RBS) had been wrong to strike out the claimant’s complaints. Not only was he a litigant in person, but his claims were sufficiently clear for the tribunal to be able to adjudicate them.
Basic facts
T, who had worked for RBS since 2008, started a new job as an expert claims’ handler in April 2012. After going off sick in September 2012, he was dismissed with effect from the end of September 2013. He was later diagnosed with autism spectrum disorder and attention deficit hyperactivity disorder.
In December 2013, he lodged claims for unfair dismissal and disability discrimination on mental health grounds. He argued that, as a reasonable adjustment, the bank should have offered him full-time or flexible hours instead of his fixed part-time hours. He should also have been given better training, along with bespoke software, a suitable monitor and a work station to help him adjust to his new job.
Earlier tribunal and EAT decisions
However, when asked by the tribunal to provide clarification about his disability discrimination complaints, T failed to do so. Over the course of 2014, he was granted a number of extensions, but after he repeatedly failed to comply with these orders, the tribunal struck out his claim. The EAT allowed his appeal against that decision on the basis that the tribunal had failed to consider whether a fair trial was still possible and/or a lesser sanction was available.
Tribunal decision
The matter then went back to the tribunal for a case management hearing in June 2018, at which the judge asked for further details of the disability claims, holding that they were still “manifestly unclear”. However, T again failed to comply with this order, along with other requests from the bank for further information.
At a hearing two weeks before the full merits liability hearing was due to open in February 2019, the tribunal judge struck out his claims, holding that his complaints were still not sufficiently clear or particularised despite the amount of time that T had been given to clarify things. In addition, as T still had not complied with the June 2018 orders, she held that the case could not be fairly prepared for trial on the dates that had been set down for it.
EAT decision
However, the EAT disagreed with the tribunal’s assessment. Although T had not referred to specific statutory provisions in his claim (not least because he was acting for himself), the particulars he had provided were sufficiently clear. In any event, his claim was perfectly straightforward and “of the type” that employment tribunals deal with regularly.
Whilst acknowledging that T had not fully complied with the tribunal’s orders and that his approach to the litigation process had been “challenging” at times, the EAT concluded that it was not reasonable for the tribunal to hold that his claims relating to dismissal and failure to comply with the duty of reasonable adjustments could not be fairly tried because they were insufficiently particularised.
In terms of the process of the hearing itself, the EAT held that rather than strike out all T’s claims, the judge should and could instead have adopted a “very firm approach”, making clear that T would not be allowed any applications to amend and that the tribunal would only adjudicate those complaints which it was satisfied were sufficiently covered by the existing particulars of claim.
The EAT, therefore, quashed the strike-out decision.
Comment
In deciding whether to strike out a party’s case for non-compliance with an order, a tribunal will have regard to the overriding objective of seeking to deal with cases fairly and justly. This requires a tribunal to consider all relevant factors, including if a fair hearing would still be possible and whether striking out - or some lesser remedy - would be an appropriate response to the disobedience. In this instance, the EAT considered a fair trial was still possible and that the lesser remedy would have been to determine only the claims that were covered in the particulars of claim.
