July 31, 2013

Striking out Tribunal claims

The Claimant unreasonably failed to comply with the Tribunal’s order that he be examined by medial expert for the purposes of a PHR on the issue of disability – he bought discrimination claims for race, religious belief and disability. The Tribunal struck out the claim in its entirety as a result.

However the EAT held that the issues to be considered were whether the conduct in question was scandalous, unreasonable or vexatious; whether a fair trial was still possible; and whether the sanction of striking out the claim was proportionate. It held that the Tribunal had not given sufficient consideration to the last two conditions i.e. whether a lesser sanction was appropriate, and the matter was therefore remitted to a different employment judge.

This case is a prime example of how difficult it is to get a claim struck out against a Claimant, however badly they may behave in failing to comply with orders.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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