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Two recent cases heard in the Employment Appeal Tribunal (EAT) illustrate why it is sometimes difficult to successfully convince an employment tribunal that the other side's claims should be struck out. In both cases, the EAT overturned the employment tribunal's decision to strike out some aspects of one party's case.
When a claim is struck out, it ends at that stage and the party does not have the opportunity to proceed to a final hearing with that claim. For this reason, it is seen as a serious sanction.
In Daly v Northumberland Tyne and Wear NHS Foundation Trust, Mr Daly argued that he had suffered unlawful detriments based upon protected disclosures. Three of his claims, however, were struck out on the grounds that they had no reasonable prospect of success and/or because the manner in which the proceedings had been conducted by the claimant was found to have been unreasonable. Mr Daly appealed against this decision.
In Arriva London North Ltd v Maseya, it was the employer, Arriva, who had their defence struck out. The employment tribunal had found that Arriva had conducted proceedings in a scandalous and unreasonable manner and had pursued a 'false defence'. Arriva also appealed against that strike out decision.
Both arguments were heard by the EAT. The EAT agreed with Mr Daly, saying that it was not possible for the Employment Tribunal to have said that some of his whistleblowing claims had 'no reasonable prospects' without holding a full hearing and hearing Mr Daly's evidence.
Furthermore, in both Daly and Arriva, the EAT said that the original decision to strike out the claims based upon the party's 'unreasonable conduct' was wrong. The EAT said that in order for a tribunal to strike out because of unreasonable conduct, it must be satisfied that a fair trial is no longer possible, and that it is proportionate to strike the claim out for that reason. This had not occurred in either of these cases. The EAT also said that employment tribunals should consider lesser sanctions - such as requiring the unreasonable party to pat a deposit in order to continue with their case, rather than striking the case out.
These two cases show that strike out is viewed as a draconian power and is something that, in the EAT's opinion, should not be used when a lesser, more proportionate sanction, is available. Employers seeking early strike out of a claim pursued against them should always consider the alternatives to pursuing strike out - such as requesting a deposit order or putting the claimant on notice as to costs - as these alternatives may be more likely to prove successful.