By Jo Seery, Professional Support Lawyer
Background
Mr Boateng was employed by Moss Bros Group Ltd from January 2017 to October 2019. Following his dismissal on 28th October 2019, he brought Employment Tribunal claims on 6th February 2020, including unfair dismissal, holiday pay and multiple allegations of discrimination, harassment and victimisation under the Equality Act 2010, some dating back to 2017.
The proceedings were significantly delayed after the respondent entered a company voluntary arrangement (CVA) in December 2020, resulting in hearings being vacated. Further delay arose due to the COVID‑19 pandemic. During the CVA, Mr Boateng submitted a proof of debt and received a partial payment before the CVA concluded on 31in March 2022.
The Employment Tribunal sought an update from the parties on how they wished to proceed. Mr Boateng confirmed he wanted to pursue his Tribunal claims; however, the respondent applied to strike out all his claims.
At a preliminary hearing on 11 September 2023, the Tribunal struck out the discrimination claims on the basis that a fair trial was no longer possible. It found that the majority of the key witnesses identified in Mr Boateng's discrimination claims were either unavailable or unwilling to give evidence, and that this was a factor of the insolvency process and ensuing delay. It held that the prejudice to the respondent employer outweighed any prejudice to the claimant, Mr Boateng. The unfair dismissal and holiday pay claims proceeded to a full hearing in February 2024 but were dismissed.
Mr Boateng appealed against the decision to strike out his claims under the Equality Act 2010 to the EAT.
Key issue
The appeal concerned the Tribunal’s power to strike out claims where it is no longer possible to have a fair hearing under rule38(1)(e) of the Employment Tribunal Procedure Rules 2024, and specifically whether the Tribunal had correctly assessed the impact of delay and considered alternatives to strike out.
Outcome
The EAT dismissed the appeal and upheld the strike‑out decision. It held that Tribunals may strike out claims where a fair trial is no longer possible, even where the delay is not attributable to either party. The approach to whether a fair hearing was possible is highly fact sensitive.
The EAT rejected criticisms of the tribunal's approach, including the failure to issue witness orders to those witnesses who had left employment, to consider the extent of contemporaneous documentary evidence and to carve out the complaints. It found that the Tribunal had properly considered the fact that, of those witnesses who were available, they were unwilling to cooperate and there was no prospect of them being able to provide evidence, taking into account the nature of the allegations, which concerned oral remarks. The EAT found that the Tribunal had also considered the extent to which documentary evidence would satisfy the lack of witnesses to the discrimination claims, taking into account the nature of the claims as compared with the holiday pay and dismissal claim, which it had allowed to proceed. As regards the Tribunal’s failure to carve up the complaints, the EAT considered this carefully. It noted that three of the five available witnesses were protagonists in certain incidents but found that the tribunal did not err in taking into account the overall picture and that all the incidents occurred over a period of four years.
On the facts of this case the EAT concluded that the Tribunal had properly interrogated the impact missing witnesses would have on the ability to hold a fair hearing and what other options were available. In doing so, it came to a permissible conclusion to strike out the discrimination claims .
Why this matters
This decision confirms that a significant delay, including a delay as a result of a company's voluntary arrangement, can justify a strike out where it undermines the possibility of a fair trial due to the unavailability of key witnesses, in a case where there are multiple allegations stretching back a number of years. This does not mean that delay in all cases will result in a successful strike out, as each case will depend on a detailed assessment of the facts.
