Labour & European Law Review Weekly Issue 329 25 July 2013
Tribunals have the power to strike out applications on a number of grounds, including a wilful failure on the part of the claimant to comply with a tribunal order. In Ahmed v Bedford Borough Council, the Employment Appeal Tribunal (EAT) held that, when deciding whether to do so, tribunals must consider the crucial question of whether a fair trial is still possible.
Mr Ahmed lodged a tribunal claim in October 2009 on the grounds of his religion or belief and/or race. He then lodged a second claim in February 2010 on the same grounds, plus disability discrimination as a result of work-related stress and depression.
The two claims were combined at a case management discussion in April 2010, during which the judge ordered both parties to jointly instruct an appropriate medical expert by 9 June. However, Mr Ahmed had not complied with the order by 23 June and the Council applied for his claim to be struck out.
Although a potential joint expert was identified shortly after that date, Mr Ahmed‘s solicitors said that, as her hourly rates were too high they would suggest an alternative, but never did. The Council applied again for the claims to be struck out on 6 September.
On 15 September Mr Ahmed’s solicitor asked for financial help with covering the cost of the expert’s fees which the tribunal agreed to do in January 2011. By August 2011, Mr Ahmed still had not seen the expert although she had offered to visit him at home.
The Council applied again in April 2012 to have the claims struck out and was given a hearing date of 2 August. On 5 July, Mr Ahmed’s solicitors asked for an appointment with the expert before 2 August, but she was not available. Although she suggested some alternatives, Mr Ahmed failed to make an appointment to see one of them by the date of the hearing.
The judge expressed concern that, as the claims contained allegations dating back to 2006 and some witnesses were no longer available, memories would have faded as a direct result of Mr Ahmed’s failure to comply with the order.
He held that Mr Ahmed’s non-co-operation constituted a wilful failure to comply with a tribunal order and struck out both claims on the grounds that the manner in which he had brought them was “scandalous, unreasonable or vexatious”.
The EAT said it had to answer three questions:
- Had Mr Ahmed’s conduct triggered the power to strike out his claims (i.e. unreasonable conduct)?
- Had the judge properly considered whether a fair trial was not possible (based on the relevant cases)?
- Did the judge consider any lesser sanctions than strike‑out?
In relation to question one, the EAT found in favour of the Council, saying there was strong evidence to support the finding that Mr Ahmed’s conduct in relation to the medical examination constituted a “wilful failure” to comply with the tribunal’s orders.
However in relation to the remaining two questions, the EAT said (with some reluctance) that the judge’s reasons were defective because he had not asked whether a fair trial was still possible. Nor was it clear whether he had considered alternatives to striking out the claims.
It therefore remitted the matter back to a different employment judge to consider the Council’s applications.