EAT upholds strike out where a fair hearing was no longer possible due to claimant's ill health

Background

In D v Greater Glasgow Health Board, the claimant was employed by the respondent from 2015. Following a period of sickness absence from October 2016, the respondent applied its sickness absence management procedure, culminating in the claimant’s dismissal in April 2019.

The claimant brought claims including unfair dismissal, disability discrimination, race discrimination and whistleblowing detriment. During the proceedings, the claimant was diagnosed with post-traumatic stress disorder (PTSD), alongside other mental health conditions.

Her health had a major effect on how the case ran. The litigation itself significantly exacerbated the claimant’s symptoms, making it increasingly difficult for the claimant to participate in the process.

The Employment Tribunal made reasonable adjustments during the proceedings, but the claimant’s health continued to deteriorate. Medical evidence indicated that the claimant was unlikely to be able to attend a final hearing, either at that time or in the foreseeable future.

In February 2023, the Employment Tribunal struck out the claimant’s claims and therefore ending the claims without a full hearing, because a fair trial was no longer possible. The tribunal considered the claimant’s medical prognosis, the claimant’s lack of confidence in the tribunal process, the costs incurred by the respondent through continued delays and the impact of delay on witnesses. It concluded that there was no lesser measure that would enable the case to proceed fairly.

The claimant appealed, arguing that striking out the claims was disproportionate and that the tribunal should have considered alternatives, including staying the proceedings.

EAT decision

The Employment Appeal Tribunal (EAT) dismissed the appeal.

Strike-out involves two stages. The tribunal must first decide whether a fair trial is impossible. If it is, the tribunal must then consider whether striking out is a proportionate response. A fair trial is one that can be run without undue time and cost, and with proper regard to other court users.

The EAT accepted the tribunal's reasons. First, there was no realistic prospect of the claimant being ready for a final hearing in the foreseeable future, and no evidence that her health would improve. The tribunal was right to look at the position as it stood when it heard the application. Second, the claimant had lost trust in the tribunal system as a whole, although the EAT warned that this should be a reason for strike-out only in extreme cases. Third, the delays were costing the respondent money. Fourth, the delay affected the accused witnesses, especially as many facts were in dispute. A hearing on the papers alone would not have been suitable, because the parties disputed whether the alleged acts had happened at all and, if so, how and why.

The EAT stressed that a fair trial must be fair to the respondent as well as the claimant. Tribunals and respondents must help unrepresented claimants, but there are limits to this. Where a claimant cannot take part in the hearing, the claim should be struck out unless some lesser step will do. The tribunal had looked at other options. Pausing the case would have been unlikely to help, given the medical outlook. The decision was a matter of discretion, and the EAT found no fault in the tribunal's reasoning.

Learning points for employers

Employers facing a claim that has stalled because of the claimant's ill health should ask for up-to-date medical evidence on whether the claimant can attend a hearing and how their condition is likely to develop. The prognosis may well be determinative of the outcome.

If considering applying to strike out the claim, employers would be well advised to keep a record of the cost of delay and how it affects witnesses, particularly where key facts are in dispute. In the interim, employers should continue to make reasonable adjustments for unrepresented claimants and keep a record of them. A history of adjustments that did not succeed will strengthen a case that no fair hearing is possible.

For more information or advice, please get in touch with Keren Felix in our Employment team.