In circumstances where a respondent (the employer) has asked for a strike out application on the basis that the claimant’s representative had oral rather than written authority to conduct the claim on their behalf, the Employment Appeal Tribunal (EAT) held in London United Busways Ltd v Dankali that the tribunal should have taken proactive steps to investigate the situation.
Basic facts
Following a long absence from sickness, Mr Dankali was dismissed in January 2020, after which he lodged several tribunal complaints. Although he did not appear at a case management hearing in November 2020, his trade union representative appeared on his behalf at a subsequent hearing in December 2020.
On 11 July 2021, the rep wrote to the judge saying that Mr Dankali had gone to Eritrea the previous November. Although he had not heard from him since February 2021, he argued that the hearing set for later in the month could proceed without prejudice to the bus company as he (the rep) was the only witness who would appear, and the rest of the evidence was written.
The judge, however, vacated the July hearing and directed that there should be a preliminary hearing to determine whether to strike out the claim “on the basis that the matter cannot proceed in the absence of the claimant and a lack of recent instructions”.
Tribunal decision
The tribunal decided not to strike out the claim on several grounds, including the “unequivocal confirmation” by Mr Dankali’s rep that he had “unconditional authority to take all steps in the claim, that the intention was to pursue the claim, that he was a participant in today’s hearing and has been involved in correspondence”.
Although the rep had nothing in writing to that effect, the tribunal concluded that it could not be said that the claim was not being actively pursued and relisted it for a full merits hearing.
The bus company appealed, arguing that:
1. To be entitled to conduct the proceedings in Mr Dankali’s absence, the tribunal should have required the rep to produce some written evidence that he had the authority to pursue the claim.
2. The tribunal had failed to consider whether the terms of the agreement between Mr Dankali and his rep were contrary to the common law rule of “maintenance or champerty”, whereby someone with no interest in a legal case agrees to finance it with the sole objective of receiving a share of any monies awarded.
EAT decision
Concerning the second point, the EAT held that the tribunal could not be criticised for not investigating the union’s agreement with its member. It also declined to give further guidance on the matter in the abstract when it was not the type of issue that arises in employment tribunals.
Concerning the first point, however, the EAT held that the starting point is that there is a presumption that tribunal representatives are generally acting with the authority and instructions of the party concerned, in this case, the claimant. However, the circumstances in this case were sufficiently unusual that they required further exploration by the tribunal.
Generally, where it is presented with a situation where there is cause for concern as to whether a representative has sufficient instructions or authority, it is a matter for the tribunal to decide. This could include requiring written instructions or other evidence. While the EAT held that it would not usually interfere with the approach taken by a tribunal, on the particularly unusual facts of this case, it held that the tribunal was wrong to go ahead and list the case for a full hearing without making further inquiries.
It, therefore quashed the decision to refuse to strike out the claim and held instead that it should return to the tribunal for reconsideration.
