A tribunal can strike out claims where a claimant refuses to engage with identifying the issues

Background

In Byczko v Manchester University NHS Foundation Trust, the claimant brought disability discrimination, reasonable adjustments, constructive unfair dismissal and whistleblowing claims against the respondent. The appeal concerned whether the tribunal should have identified the issues itself rather than striking out her claims for failing to clarify them.

The claimant was unrepresented, and her claim form was largely dense narrative that obscured the legal claims and facts relied on. After several preliminary hearings, an employment judge prepared a draft list of issues, which the Employment Appeal Tribunal (EAT) later said went beyond what a tribunal could reasonably be expected to do. The claimant was ordered to amend it within almost three months, with a strike-out warning. She instead produced a 37-page document that ignored the draft and increased her alleged protected disclosures from between four and six to 32.

The tribunal struck out the claims for non-compliance with its order, finding that a fair trial was no longer possible.

EAT decision

The EAT dismissed the appeal.

The EAT rejected the claimant's argument that the tribunal should have imposed a list of issues itself. A tribunal must assist unrepresented and disabled litigants, but it is impartial and must not formulate a party's case. Having already drafted a list for her, repeating the exercise would have been a disproportionate use of tribunal resources and unfair to the respondent, which was entitled to know the case it had to meet.

The breach was not deliberate but went to the heart of the case, and a fair trial is not a trial at any cost. Staged final hearings were unworkable, and an unless order would have been pointless given the earlier warnings.

The tribunal had also made extensive reasonable adjustments, including remote hearings, breaks, extended deadlines and the offer of an intermediary. The claimant's difficulty arose from not being a lawyer rather than from her disability.

Learning points for employers

The decision clarifies the limits of the tribunal's duty. In complex claims, the tribunal should normally try to identify the issues at one, or possibly two, preliminary hearings. It may clarify a claim or label a complaint already made but must not formulate the claimant's case. Strike-out remains a last resort.

The duty to cooperate in agreeing the issues applies to both parties. Where a claim is pleaded as unstructured narrative, employers should request particulars and engage constructively. If an employer thinks the tribunal is formulating the claimant's case, it should say so at the time, not only on appeal.

Where a claimant keeps refusing to engage despite extensive help and clear warnings, employers can consider applying for strike-out. It will help to show the adjustments made, the lack of evidence that disability prevents compliance, and wasted costs.

For more information or advice, please get in touch with Georgia Blesson in our Employment team.