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This case concerns the power of the Employment Tribunal to strike out claims where there has been a serious failure to progress the claim on the Claimant’s part. This is a rather unusual case in that the Claimant’s solicitors apparently failed to respond to the Employment Tribunal relating to a question of the Judge’s on at least three separate occasions over a number of months.

The facts in Mitie Cleaning And Environmental Services Ltd v Challinor

On 15 March 2011 the Claimant submitted a complaint to the Employment Tribunal relating to age discrimination in his workplace. The Employment Tribunal accepted the response on 14 April 2011. In the ET3 the Respondent requested that the case be transferred to the Manchester Employment Tribunal. The Employment Tribunal wrote to the Claimant’s solicitors on 19 April 2011 requesting the Claimant’s comments on moving the case to the Manchester Employment Tribunal. The Claimant’s solicitors failed to respond and the Employment Tribunal wrote to the Claimant’s solicitors again on 6 May and 17 May 2011, the latter letter stating that the Claimant’s claim would be struck out should the Claimant fail to respond to the Employment Judge’s request for comments. The Claimant’s solicitors did in fact fail to respond and on 13 June 2011 the Employment Tribunal issued a judgment striking out the claim. The Claimant’s solicitors subsequently requested a review of this decision.

The law relating to the striking out of Employment Tribunal claims

An Employment Judge has the power to strike out a claim or response under Rule 18(7) of the ET Rules under one of the following grounds: if the claim is scandalous, vexatious or has no reasonable prospect of success; the proceedings have been conducted on behalf of either of the party’s in a scandalous, vexatious or unreasonable manner; the claim hasn’t been actively pursued by either party; either party has failed to comply with an order or practice direction; or whether the employment judge considers it is impossible for a fair hearing to be held for either party.

Generally, a claim can only be struck out at a pre hearing review (“PHR”) – with the single exception of if an unless order has been applied for and granted.

The Employment Appeal Tribunal’s decision in Mitie Cleaning And Environmental Services Ltd v Challinor

The Employment Tribunal rejected the Claimant’s arguments for reinstatement of the claim. The Claimant’s solicitors attempted to rely on the medical incapacity of the solicitor who was previously handling the claim on the Claimant’s behalf (who had by the time of the Appeal hearing had left the Claimant’s solicitor’s firm). However, the Claimant’s solicitor representing the Claimant at the EAT hearing failed to introduce evidence relating to the previous solicitor’s medical incapacity and failed to demonstrate that the decision of the Employment Judge in striking out the claim was an unreasonable or a perverse one.

Our specialist employment lawyers’ thoughts on Mitie Cleaning And Environmental Services Ltd v Challinor

As stated above, this is a rather unusual case and fortunately for Claimants the majority of cases are conducted in a far more professional manner than the present one. However, Claimants (and Respondents) should be aware that their claim (or response) may be struck out should they fail, as in Mitie Cleaning And Environmental Services Ltd v Challinor, to pursue the claim in an active manner.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog.

Contact Chris by emailing him at chadrill@redmans.co.uk

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