One of the most controversial powers of the Employment Tribunal is the ability of single judges at Pre-hearing Reviews to strike out claims, without a full hearing.

Applications by Respondents to have a claim struck out are becoming more common, as (where successful) the application seems to offer them the perfect result: victory in the case without having to disclose any documents, and without their managers having to face the indignity of being cross-examined, and at relatively little cost. Claimants, for equivalent reasons, detest being struck out: above all, there seems to be something unjust about having a claim struck out without the claimant ever having been fully heard.

The appellate courts are often sceptical about strike out applications: as they require the courts to pre-emptively assess the merits of a claim, without the court being in possession of more than a minority of the facts. They also encourage satellite litigation: claims can spend years going from appeal to appeal only to be sent back down to a fresh start in the Employment Tribunal, delaying justice, and adding costs all round.

The power to strike out Tribunal claims is contained in rule 18(7) of the Employment Tribunal Rules of Procedure.

“(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order …
(b) striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success…”

As the language of the rule suggests, this power is intended to be reserved for unusual cases. It is not enough to say that a case “might” or even “should” lose. It must have “no reasonable prospect of success”.

While there is a general policy presumption against striking out all cases, irrespective of their jurisdiction, it has long been understood that the exceptional nature of the rule 18(7) power applies with even more force where the claim is a discrimination claim.

In the often-cited case of Anyanwu v South Bank University and South Bank Student Union [2001] ICR 391 HL, the House of Lords emphasised:

“24. … the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”

There will be cases which get past Anywanu: claims which are illogical, or which make no sense in fact or law. But they are going to be rare indeed.

Most helpfully, this week, the Court of Session (ie the Court of Appeal in Scotland) in Scotland in Tayside Public Transport Company Limited (t/a Travel Dundee) v James Reilly [2012] CSIH 46, 30 May 2012, appears to have extended the Anyanwu exception to all unfair dismissals in which there is a serious dispute on the facts:

“[30] Counsel are agreed that the power conferred by Rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, at para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel (2003) CP Rep 51, Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Mann Liquid Products Ltd v Patel, supra; Ezsias v North Glamorgan NHS Trust, supra). But in the normal case where there is a “crucial core of disputed facts,” it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out (Ezsias v North Glamorgan NHS Trust, supra, Maurice Kay LJ, at para 29).”

The facts of Tayside are as follows: a bus driver got lost and drove under a bridge, shearing off the top of his bus. Following a short disciplinary process, in which it was shown that he had been provided a copy of a route variation but had not read it, he was summarily dismissed. The ET struck out the cases, only to be overturned at the EAT, Lady Justice Smith finding that the Judge had gone to far in striking out the claim. The company appealed to the Court of Session – and lost. While on one view, it might be said that there could be little disagreement between the parties as to the circumstances of the dismissal (the driver undoubtedly drive the bus into the bridge, it is pretty obvious that causing damage on this scale is capable of being gross misconduct); applying the above test, the Court found that there was a factual dispute, and the Tribunal had not considered what additional evidence might come out at a further hearing. Accordingly, the case had to be remitted to the Tribunal for a fresh hearing.

Even a case which, on the surface, is this likely to be determined in favour of the company, should not be struck out.

It remains to be seen whether this new approach “holds”, but if it does, it may be that successful strike out applications become much rarer in future.