Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

This is a rather unusual case, made unusual by the fact that a Pre Hearing Review (“PHR”) which was initially scheduled for half a day had not concluded133 days after the claim was struck out by the Employment Judge.

The facts in Osonnaya v South West Essex Primary Care Trust

Dr Osonnaya (“the Claimant”) submitted complaints to the Employment Tribunal on 4 September 2007 relating to unfair dismissal for making a public-interest disclosure (“automatic unfair dismissal”), disability discrimination, and race discrimination.  Preliminary issues of whether the Claimant was an employee or a worker for the purposes of the law relating to unfair dismissal and disability and race discrimination. A Pre Hearing Review was therefore scheduled for 14 April 2008 to deal with these issues.

The claim for disability discrimination related in whole or in part to a serious illness that the Claimant has (“sarcoidosis”). This illness is an auto-immune illness and has serious effects on the Claimant – she is almost blind and is wheelchair-bound. As the Claimant was dependent on her carer to attend the Employment Tribunal she was often late for the 10.30am start. She also required injections during the day and lost her voice. Further, the Claimant struggled to obtain consistent representation. However, as the Hearing days passed the Employment Judge took the view that a fair hearing would no longer be possible because it couldn’t be predicted when the hearing would finish. The Judge therefore decided of his own volition to consider whether proceedings should be struck out on the basis that it was no longer possible to have a fair hearing. He considered that there was no evidence to suggest that there would be an end to the case, the Respondent was being prejudiced because of the costs of the case, and that potential problems with a witness in Tazmania would further delay the administration of justice. He therefore struck the claim out.

The Claimant appealed.

The law relating to the Employment Tribunal’s power to strike out claims

The Employment Tribunal has the power to strike out a claim (or a response) under Rule 18(7) of the Tribunal Rules in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Under Rule 18(7) a claim (or a response) may be struck out if:

  • The claim or response is scandalous or vexatious
  • The claim or response has no reasonable prospect of success
  • Proceedings have been conducted by or on behalf of a party in a scandalous, unreasonable or vexatious manner
  • The claim has not been actively pursued
  • There has been non-compliance with an order or practice direction; and/or
  • It is no longer possible to have a fair full hearing (Rule 18(7)(f)

Rule 18(7)(f) (the possibility of a fair hearing) normally arises in cases where medical incapacity has rendered a Claimant unable to pursue his or her case effectively (as in Peixoto v British Telecommunications PLC). However, rulings under Rule 18(7)(f) are extremely rare in practice.

This power generally only arises at Pre Hearing Reviews. However, there is one exception – if an “unless order” has been issued and a party has failed to comply with the “unless order”. In those circumstances the claim can be struck out with a Pre Hearing Review being attended.

The Employment Appeal Tribunal’s judgment in Osonnaya v South West Essex Primary Care Trust

The Employment Appeal Tribunal upheld the Claimant’s appeal. A sufficient amount of time had not passed such as to absolutely prejudice the possibility of a full fair hearing and the Employment Appeal Tribunal believed that the Judge’s case for striking out the claim was overstated. What he should have done instead was to exercise his case management powers to marshal the parties and bring the case to a conclusion within a reasonable time. Further, the financial prejudice to the Respondent had to be weighed against the possibility of a fair trial, and the necessity of a fair trial generally outweighed any financial prejudice (although consideration had to be had to the financial circumstances of the Respondent). Further, the Judge had made a medical judgment relating to the Claimant’s capacity to continue the hearing, a judgment he was not entitled to make.

Our specialist employment lawyers’ thoughts on Osonnaya v South West Essex Primary Care Trust

This is a purely procedural case but one which raises important and interesting issues relating to the Employment Tribunal’s power to manage and strike out claims. Employment Judges clearly have the right to exercise the power to strike out claims under Rule 18(7) but in doing so must obtain sufficient evidence to make a reasoned decision. Further, the Judge must not make decision that he is not entitled to (such as on medical evidence).

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

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.78 Average

138 Reviews

Richard O

Chris at Redmans is my go-to legal expert when it comes to employee-related matters. His depth of knowledge, experience and considered approach to problems and their solutions is highly valuable. I cannot recommend Redmans highly enough.

Posted 5 days ago

Rory Y

They provide me with timely and clear advice!

Posted 5 days ago

Steven C

Redmans handled my settlement with my employer quickly, decisively and to a standard that I was very happy with. I would in similar circumstances contract them again

Posted 5 days ago

Deepthi K

Transparent. Clear communication. Prompt reply’s. Saves lot of time. Very satisfied.

Posted 5 days ago

Anonymous

Chris and Sacha did a fantastic job and negotiated a significant better settlement agreement

Posted 5 days ago

Dino D

I did get a very swift and god service from Redmans

Posted 5 days ago

Stephanie H

Clear, prompt, effective support from Chris which has been very much appreciated. Thank you again.

Posted 2 weeks ago

Anonymous

I would highly recommend Redmans Solicitors, the team were very friendly and my case was dealt with professionally and efficiently. Thank you!

Posted 1 month ago

Shane M

Very professional, welcome advice at a crucial time. Always available and reasonable cost.

Posted 1 month ago

Anonymous

My case was relatively straight-forward. But even so, working with Redmans was easy, quick, professional & clear. Many thanks

Posted 1 month ago

Anonymous

The team were very helpful and answered all my questions regarding my redundancy. Initially I had a call with one of the representatives who escalated my request to a suitable employment solicitor. We arranged a call to discuss the settlement and she helped answer all my questions. We then mainly contacted through email which helped resolve the settlement quickly and convently. Thanks for all the help.

Posted 1 month ago

Djaouida T

You have good communication.

Posted 1 month ago

Anonymous

Fast and professional. A highly recommended company for employment related issues.

Posted 1 month ago

Anonymous

Very professional service.

Posted 1 month ago

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 9 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 11 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 11 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 11 months ago

Anonymous

Easy to get hold of. Quick.

Posted 11 months ago

Owen J

Very helpful, efficient service.

Posted 11 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 11 months ago