EAT upholds strike-out of discrimination claims due to inability to have a fair trial

Background

In the case of Boateng v Moss Bros Group Ltd, the claimant began a claims in 2020, including multiple race and religion discrimination complaints dating back to 2017, alongside unfair dismissal and holiday pay claims following his dismissal in 2019.

The progress of the claim was significantly delayed by the Covid-19 pandemic and the respondent entering into a company voluntary arrangement (CVA) from December 2020-March 2022. By the time of a preliminary hearing in 2023, the respondent applied to strike out the discrimination claims on the basis that a fair trial was no longer possible.

The Employment Tribunal upheld that application, finding that most of the relevant witnesses were no longer employed by the respondent, and many were uncontactable or unwilling to engage. The tribunal also considered that the allegations spanned several years and some of those allegations would only be heard 7 years later. The discrimination claims were struck out, although the unfair dismissal and holiday pay claims were allowed to proceed.

The claimant appealed on a number of grounds, including that the tribunal had failed to consider whether witness orders could secure the attendance of the extant witnesses or whether it was possible to carve out the complaints. The claimant also applied to postpone the final hearing of those remaining claims pending his appeal against the strike-out decision. That application was refused.

EAT decision

The EAT dismissed the appeal on both the strike-out and postponement issues.

On strike-out, the EAT emphasised that the question of whether a fair trial is possible is a fact-sensitive, evaluative judgment for the tribunal. It rejected the argument that a tribunal must be certain that a fair trial is impossible; it is sufficient that there is a serious or real risk that a fair trial cannot take place.

The tribunal had been entitled to conclude that such a risk existed. The scale of the allegations, the passage of time, and the loss of key witnesses meant the respondent would be placed at a substantial disadvantage in defending the claims. The EAT accepted that witness orders or reliance on documents would not necessarily resolve those difficulties, particularly where allegations turned on oral evidence and credibility.

The EAT also confirmed that tribunals may consider whether it is realistic to proceed with only part of a claim. In this case, it was not wrong to conclude that attempting to “carve up” the discrimination allegations would be impractical and would not result in a fair trial.

On the postponement application, the EAT found no error in the tribunal’s refusal. There had been no material change of circumstances since an earlier refusal, and the tribunal had been entitled to proceed with the unfair dismissal claim despite some factual overlap with the struck-out discrimination claims. The possibility of future proceedings did not justify further delay in a case already several years old.

Learning points for employers

This decision underlines that tribunals may strike out claims where delay and evidential gaps make a fair trial unrealistic, even where the delay is not the claimant’s fault. Employers facing historic claims should assess early whether key witnesses and evidence remain available and, if not, consider whether a strike-out application is appropriate. However, it is important to recognise that this is a highly fact sensitive decision, and employers should exercise caution in relying on it as a precedent. 

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