The claimant was dismissed in February 2010 and he presented his ET1 to the Tribunal in April 2010, well within the 3 month time limit. However, the Tribunal was at the time piloting a new computer system and experienced considerable administrative difficulties which resulted in a failure by the Tribunal to communicate with either the claimant or respondent. The claimant's representative, his union, did not pursue the claim until nearly 2 years later. The Tribunal agreed that the claim had been correctly served and the respondent applied to have the claim struck out on the ground that it was no longer possible to have fair trial. The EJ agreed that the claim should be struck out and the claimant appealed.

The EAT dismissed the appeal. The judge had considered the relevant materials and acted on the proposition that the delay was inordinate. In the light of the response of the Employment Tribunal and the acceptance by the union that it sat on its hands, she was entitled to form the view that it was inexcusable. The next issue therefore was which way the balance of prejudice lay and in the judgment of the EAT she made a permissible decision. In reality, the claimant's remedy was not in the Employment Tribunal.

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Appeal No. UKEAT/0030/13/MC

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 15 July 2013

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR ELLIOTT (APPELLANT)

THE JOSEPH WHITWORTH CENTRE LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SCOTT CRESSWELL (Representative)
Community Trade Union
Member Service Centre
1st Floor Carpet Weavers Hall
Callows Lane
Kidderminster
DY10 2JG

For the Respondent
MISS LOUISE QUIGLEY (of Counsel)
Instructed by:
Messrs Banner Jones Middleton Solicitors
24 Gluman Gate
Chesterfield
S40 1UA

PRACTICE AND PROCEDURE – Striking-out/dismissal

A two year delay in dealing with the Claimant's claim form, by the Tribunals Service and by inaction of his union, was inordinate and inexcusable. It made a fair trial impossible. The claim was permissibly struck out by the Employment Judge. In reality, his remedy is not in the Employment Tribunal.

1. This case is about the striking out of a claim for failure to pursue it over an inordinate period of time and because a fair trial was no longer possible. I will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Claimant in those proceedings against a Judgment of Employment Judge Milgate sitting at Nottingham at a PHR on 22 May 2012 for which Reasons were sent on 3 September 2012. The Claimant has the advantage to be a member of Community the Union for Life and was represented by one of its officers. Today a different officer, Mr Scott Cresswell, appears for him. The Respondent was represented by its solicitor, Mr Hughes, who today instructs Miss Louise Quigley of counsel.

1. The Claimant makes a claim of unfair dismissal which occurred on 6 February 2010. He presented it on 30 April 2010 but it was not sent to the Respondent until almost two years later. It is that delay which is the subject of the strike out application. The Judge held that the application should succeed on both of the two grounds put forward, the Claimant appeals against that. HHJ Peter Clark sent this to a full hearing and both parties have now put forward substantial skeleton arguments.

1. The essential issue before the Judge was whether the conditions met for strike out under rules 18(7)(d), non-pursuit of the claim or (f), impossibility of a fair trial, were met. They are as follow:

"(7) Subject to paragraph (6), an Employment Judge … may make a judgment or order:-

(d) striking out a claim which has not been actively pursued;

(f) striking out a claim where the Employment Judge …

considers that it is no longer possible to have a fair Hearing in those proceedings."

1. The facts are stark. The chronology is sad and disappointing. These are the facts:

"1.1 The issue in this case was a straightforward one, namely whether the Claimant's claim for unfair dismissal should be struck out under Rule 18(7(d) of the Tribunal Rules on the ground that it had been actively pursued and/or under Rule 18(7)(f) on the ground that it was no longer possible to have a fair hearing in these proceedings. The Tribunal Rules are found in Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 ("the Tribunal Rules").

1.2 The background to this case - which is not in dispute - is as follows. The Respondent, a company limited by guarantee, is a small organisation which runs a local community centre. It is run by a Board of Trustees. The Claimant had been employed as a caretaker by the Respondent until he was dismissed in early February 2010 by the then Vice-chair of the Trustees.

1.3 The Claimant, who was presented from the outset of these proceedings by the Community Trade Union, presented a timely Claim Form alleging unfair dismissal on or around 30 April 2010. In normal circumstances the Employment Tribunal Service would have been expected to have acknowledged receipt and then written to the Claimant's representative either accepting or rejecting the claim within a few weeks. Regrettably in this case this did not happen, even though subsequent investigations by the Tribunal Service have confirmed that the Claim Form was indeed properly served on the Tribunal by the Claimant's representative within the three month time limit. This failure by the Tribunal Service may well owe much to the fact that the Nottingham Tribunal Office was at the relevant time piloting a new computer system ("Caseflow") and experiencing considerable administrative difficulties as a result. In any event the Tribunal Service took no action in respect of the Claim Form - failing to communicate with either the Claimant or the Respondent or to process the claim in any way. The Claimant's representative therefore had no response whatsoever from the Tribunal in the weeks and months which followed the presentation of the claim.

1.4 Unfortunately, the Tribunal's failure was compounded by the fact that the Claimant's representative then did absolutely nothing to chase the matter. In fact, it was only in early February 2012, over 21 months after the Claim Form had been filed, that the Claimant's representatives finally contacted the Tribunal Service asking what had had happened in respect of the claim and enclosing a further copy of the Claim Form. At this point the Claim Form was accepted and served on the Respondent - which of course should have happened back in May 2010. As a result the first time the Respondent was alerted to the fact that a claim had been made against it was two years after the Claimant had been dismissed. A Response was subsequently entered resisting the claim but also applying to have the matter struck out on the grounds set out in paragraph 1.1 above."

1. The Judge on the application of the Respondent who had submitted its response on 3 April 2012 conducted a hearing at which submissions were made by the parties and the Judge considered the claim form and the response. No evidence, whether in writing or oral was given to the Judge. There is a power under the strike out rules to hear evidence at a PHR but none was.

1. The simple proposition from the Respondent was that memories have faded and it would be prejudiced if the case were to be heard. The delay was both inordinate, almost two years, and inexcusable given the error of the Employment Tribunal and of the failure to chase up the case via the union. The Judge had to decide even if she was considering (d), not actively pursued, whether a fair trial yet was possible and so her conclusion on that point would encompass her conclusion which she did in fact make separately but very briefly on (f), a fair trial. The Judge addressed what the parties agreed are the relevant authorities in this case to which I will turn and concluded that both aspects of the rule had been satisfied.

1. The Claimant contends in an exemplary skeleton argument by Mr Cresswell that the central issue in the case was the failure by the Judge to hear and form a view on evidence that memories have faded causing unfair prejudice to the Respondent. He makes other points in his skeleton but he has today focused my attention on this particular aspect and in turn so has Miss Quigley. Mr Cresswell says that on the failure to produce evidence as to faded memories, the Judge could not have made the decision which she did. In turn Miss Quigley contends that this was based on submissions by a solicitor as to what would be the likely effect of allowing this case to go ahead with, for the sake of shorthand, a two year delay. The Respondent was not obliged to call a witness or to produce a witness statement from one of the people saying that he or she did not remember very clearly.

1. The legal principles in this case are derived from Evans v The Metropolitan Police Authority [1992] IRLR 570. In that case the Court of Appeal was considering an appeal from the EAT and the invoked the principles from the civil jurisdiction deriving principally from Birkett v James [1978] AC 297. As the Judgment of Steyn LJ makes clear, there is an examination of Birkett v James and its application and injection into the Employment Tribunal system:

"10. The legislature gave statutory force to the primary requirements laid down in Birkett v James. Section 102 of the Courts and Legal Services Act 1990 summarised those requirements as follows:

(a) that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim; and

(b) that the delay

(i) will give rise to a substantial risk that it is not possible to have a fair resolution of the issues in that claim; or

(ii) has caused, or is likely to cause or to have caused, serious prejudice to the respondent."

1. And then he goes onto consider what opportunities were available in the ET and says this:

"11. At first glance this regulation seems to vest in the Industrial Tribunal an open textured discretion to strike out claims for want of prosecution whenever it thinks fit. Nobody suggests that such an interpretation would fit the probable legislative purpose. Bearing in mind that the power of Industrial Tribunals was created in 1980, that is two years after Birkett v James spelt out the criteria applicable to the striking out of applications in the High Court, as well as the draconian nature of the power to strike out, it is inconceivable that the power was intended to be exercised whenever an Industrial Tribunal thought it right to do so. In my judgment, this Court can only make sense of the general working of reg. 12(2)(f) by treating the requirements of Birkett v James as applicable mutatis mutandis to applications before Industrial Tribunals to strike out claims for want of prosecution. Moreover, I am not persuaded that the qualification mentioned in the Credit Aid case will work in practice. The effect of saying that both sides must get on with the case could make it difficult to demonstrate inexcusable delay even in cases involving enormous delay."

1. The Lord Justice reflects upon the importance of having discrimination cases determined and returns to the test as follows:

"14. The third issue is whether the Industrial Tribunal was entitled to conclude that the requirement of serious prejudice was established. It is sometimes possible to infer prejudice from the circumstances in which the cause of action arose and the length of the delay."

1. Similar observations were by made by Hoffman LJ and Balcombe LJ.

1. In my judgment the Employment Judge cannot be criticised for her approach to the case. She could or could not hear oral evidence as she thought fit, she was not given any oral evidence to hear. The difficulty facing a Respondent is in the preparation of the case. Miss Quigley contended that in a case where it is unfair to put the Respondent to the test in a full hearing it is equally unfair to require it to produce evidence at the PHR. If the central case of the Respondent is that it cannot adequately defend itself because of the passage of time, it is open to it to put that as a submission and an inference can be drawn as Steyn LJ says about the effect of that. Here the solicitor is making a submission based upon instructions he has received.

1. The fact that a good fist at a defence is made in the Response does not detract from the problem which it faces in putting live evidence before the Tribunal in defending the unfair dismissal case. The Judge examined the force of this argument because the Claimant had said that he had kept notes of relevant meetings. She decided that much depended on the memory of the relevant officers so long ago and they had not taken notes, or notes that had been taken are no longer available. True it is that the fact people have left the organisation or have gone abroad is not necessarily to be used as a reason why there cannot be a fair trial. But fading memory is. The Judge examined this in the circumstances which were presented to her together both substantive under section 98(4) (reasonableness) and compensation under the doctrine in Polkey v AE Dayton Services Ltd [1988] ICR 142.

1. The Judge addressed Evans, and other authorities in this field such as Abagaze v Shrewsbury College, [2010] IRLR 248 where the Court of Appeal overturned both the Employment Judge and the EAT in which I sat and ordered the restoration of the Claimant's case seven years after the events. The Judge considered that case did not assist in the present circumstances.

1. The Judge also considered that the step she was taking was draconian. She also considered the relevant balance of prejudice. I reflected with the advocates this morning on what this means and in my judgment it is axiomatic in the exercise of discretion on a strike out that there will be an equal and opposite balance of prejudice as a matter of routine in such a case. The Claimant, who let us say, has a strong case which is struck out, is prejudiced at that loss, and the Respondent receives a windfall because it can escape justice. On the other hand, if the strike out application is refused and a weak case, let us say, goes on, the Respondent is put to task of preparing and defending a case at length. So that kind of prejudice occurs in every exercise such as this. What the court is looking for is something more to do with the case itself, such as memories fading, documents and witnesses going missing, the business going insolvent, a change of representation and that cost.

1. The Judge, in my opinion, has considered these relevant materials. She acted on the proposition that the delay was inordinate. It is pre-eminently a question of fact for a first instance Judge to decide what is a delay, and how long is a delay before it is inordinate. She also decided that it was inexcusable; I agree with her. In the light of the response of the Employment Tribunal and the acceptance by the union that it sat on its hands, she was entitled to form the view that it was inexcusable. The next issue therefore was which way the balance of prejudice lay and in my judgment she made a permissible decision.

1. I bear in mind how difficult it is for the EAT or the Court of Appeal to interfere with the exercise of discretion by a Judge in this jurisdiction; see for example [O'Cathail v TfL ]()[2013] IRLR 310. This is not a case where it could be said the Judge erred in principle, took account of an irrelevant matter or overlooked a relevant matter.

1. Of course the practical consequence as I have been told by Mr Cresswell is that the union has advised Mr Elliot that he must take advice on his position as against the union and as against the Tribunals Service. Quite properly, he has been referred elsewhere. I get no satisfaction in possibly driving the Claimant off now to take action against his union or the Tribunals Service, but the Judge made a decision which was open to her and that may well be the consequence. In reality, his remedy is not in the Employment Tribunal.

1. So I would like to thank both Mr Cresswell and Miss Quigley for their arguments today. The appeal is dismissed.