Osonnaya v South West Essex Primary Care Trust – unfair dismissal, illness and striking out claims

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).