The extent to which Mitchell applies to Tribunals

The Respondents had repeatedly failed to provide their witness statements until the final hearing. Consequently the Claimant applied to have the Respondents’ case struck out. The Tribunal considered however that greater prejudice would be afforded to the Respondents if this action was taken, than to the Claimant, not least because a number of the Respondents were individuals against whom allegations of discrimination had been made to which they would not then have the opportunity to respond.

In considering the Jackson reforms in the context of the Tribunal proceedings, the EAT concluded that, while it may be appropriate for Tribunals to consider decisions such as the one in Mitchell and the additional requirements of the overriding objective in the Civil Procedure Rules, Tribunals were not bound to follow them. There had been a deliberate decision by Parliament to draft the overriding objective in the 2013 version of the Employment Tribunals Rules differently from the CPR version and this should be borne in mind.

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.