Peixoto v British Telecommunications plc
In certain extreme circumstances, tribunals can strike out a claimant’s complaint. This was confirmed by the Employment Appeal Tribunal (EAT) in Peixoto v British Telecommunications plc (IDS 856) as the right approach if a fair trial is not possible within a reasonable time.
Basic facts
Ms Peixoto worked for BT as a computing officer from 1991. She went off sick in January 2001 and remained on sick leave until her dismissal in November 2003. She lodged a claim for unfair dismissal and disability discrimination in 2004 on the grounds that BT had failed to make reasonable adjustments for her chronic fatigue syndrome (CFS) throughout 2002.
History of hearings
The case was initially stayed by an employment judge in 2005, after which a sequence of case management discussions were fixed but postponed throughout 2005, broadly speaking at Ms Peixoto’s request.
Another case management discussion followed in early 2006, at the end of which the judge set out a timetable for a pre-hearing review to decide if it should be struck out. The case was not struck out, but was instead listed to be heard on 18–30 October 2006. However, that hearing was postponed at Ms Peixoto’s request and it was then re-listed for 10 January 2007.
Tribunal decision
At the January hearing, Ms Peixoto asked for it to be postponed again, at which point BT said her claim should be struck out because it was no longer possible, under tribunal rules, to have a fair hearing.
The tribunal looked in detail at the various medical reports submitted to it, which made clear that Ms Peixoto would need long periods of rest during the hearing and that she would not be able to meet deadlines for submitting paperwork to the tribunal for about another 5 months. She herself said she would be ready for the case to be heard in June.
Given the history of the case, the tribunal was concerned that despite the numerous medical reports, none could give a prognosis as to when Ms Peixoto would be well enough to prepare and present her case (which she was doing in person). On that basis it decided that the hearing should not be postponed yet again.
It then considered BT’s application to strike out her claim. To avoid this “extremely serious step”, it asked Ms Peixoto to go ahead without a written statement. However, she said she could not do this as she had not thought about what she wanted to say in oral evidence. As there was no likelihood of a hearing going ahead in the near future, the tribunal reluctantly struck out her claim on the basis that it was no longer possible to have a fair hearing.
EAT decision
And the EAT agreed. Although striking out a case (particularly a discrimination case) was a “draconian measure to be used sparingly”, the tribunal had considered “all lesser alternatives, including proportionate measures to see whether the case can be tried. In this case it was offered a number of possible scenarios.”
These included the possibility of conducting the trial on the paperwork alone (which it rejected on the basis that it would be unfair to Ms Peixoto); and also the possibility of postponing it yet again. It also rejected this option, on the basis that the medical evidence was the same as it had heard before and it was not clear when she might be well enough to continue.
On that basis, it concluded that the tribunal’s decision was firmly rooted in article six of the European Convention on Human Rights which says that a trial must take place within a reasonable time. “If it could not in 2007 see any time in the future when this case arising in 2003 could be tried, then it was correct to form the view that a fair trial was not possible and to strike it out.”