The tribunal's powers to dispose of or filter claims at a preliminary stage under rules 38 and 40 of the ET Rules 2024. Anyanwu v South Bank Student Union; Ezsias v North Glamorgan NHS Trust.
Practice; procedure; Court of Appeal decision on employment tribunal procedural fairness. A tribunal should be helpful to litigants to help establish clearly whether issues raised on the papers are being pursued. Cited for the general principle that a party is entitled to know the case it has to meet.
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; strike out; scandalous conduct by a representative. The word 'scandalous' in what is now rule 38(1)(a) means irrelevant and abusive of the other side, not 'shocking' in the colloquial sense. A lay representative, refused an adjournment, told the tribunal more than once that he would not be treated that way if he were a white barrister. The Court of Appeal held that the tribunal and the EAT had erred in striking out the claim for the representative's scandalous conduct: his conduct, though improper, was reversible and did not justify striking out. What must be characterised as scandalous is the way the proceedings are being conducted on the party's behalf. A party must have room to disassociate himself from what his representative has done.
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; strike out; deposit orders. Under the 2001 Rules 'no reasonable prospect of success' bore the same meaning for a deposit order (r.7) as for striking out a claim as 'misconceived' (r.15); the tribunal was wrong to treat the first as a view and the second as a finding of fact. The EAT (31 January 2003) identified four options where a claim has no reasonable prospect: strike it out, the most draconian; order an amendment; order a deposit; or award costs at the end. A two-stage approach applies: is the claim misconceived, and if so which option should be taken as a matter of discretion ([14]-[15]). Exercising that discretion itself, the EAT declined to strike out a fact-sensitive constructive dismissal claim whose allegations had at that stage to be taken as true. Decided under the 2001 Rules.
Practice; strike out; claims involving disputed facts (e.g. whistleblowing) should rarely be struck out.
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice and procedure; deposit orders; assessment of the facts. The tribunal ordered a deposit on the ground that the claims had little prospect of success and, when it was not paid, struck the claims out. Elias P held that a tribunal considering a deposit order may have regard to the likelihood of the facts being established: the test of 'little prospect of success' is plainly not as rigorous as the strike-out test of 'no reasonable prospect', so the tribunal has greater leeway, but it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response ([27]). Decided under rule 20 of the 2004 Rules; the deposit power is now rule 40 of the Employment Tribunal Procedure Rules 2024. The appeals were dismissed.
Practice; deposit orders; the purpose of a deposit order is emphatically not to make it difficult to access justice or to effect a strike out through the back door. The tribunal must enquire into the paying party's ability to pay; a deposit must be set at a level capable of being complied with, otherwise it impairs access to justice.