Labour & European Law Review Weekly Issue 336 10 September 2013
Tribunals can, in certain circumstances, strike out a claimant’s complaint. In Riley v Crown Prosecution Service (CPS), the Court of Appeal said that they can strike out a claim in circumstances where the claimant is ill and the medical experts are unable to say when they might be well enough to attend.
Ms Riley, a senior prosecutor with the CPS, brought a number of grievances alleging bullying and harassment by colleagues, which predominantly were not upheld. She lodged tribunal claims in 2009 and 2010 alleging race and disability discrimination as well as whistleblowing.
Although the CPS started disciplinary proceedings against her for making false allegations in mid 2009, the hearing did not go ahead until July 2010 because of her continued ill health (she went off sick in August 2008). She was dismissed for misconduct in September 2010 and lodged a claim against her dismissal in December.
The case was listed for hearing over four weeks starting on 3 May 2011, but on 27 April (the day she lodged another tribunal claim) a doctor told the court she was not in any fit state, either physically or mentally, to attend. The case was adjourned until 11 May to decide whether the claims should be struck out in their entirety instead of being heard at a later date.
Decisions of lower courts
The two medical experts agreed that the court was faced with a “chicken and egg” situation in that Ms Riley currently was not fit enough to attend a hearing, but would not improve and would continue to be affected by the stress associated with the litigation until it was resolved.
In the circumstances, as the experts could not say with any certainty when she might be well enough to attend, the judge decided that it was no longer possible to ensure a fair trial. The Employment Appeal Tribunal (EAT) agreed.
Ms Riley appealed, arguing that it was wrong to strike out the proceedings when she was not in breach of any substantial order. Given that her medical condition had been caused by bullying and intimidation when she was employed by the CPS, it should not be allowed to benefit from its “own wrong”. Instead, the only fair course was to allow her to present her case at the next available date when the court could sit for 20 days which was January 2013.
Decision of Court of Appeal
The Court held that when deciding whether to refuse an adjournment, tribunals had to balance a number of factors. These included not just fairness to the claimant, but also to the respondent as set out in article 6 of the European Convention on Human Rights, which makes clear that every litigant is entitled to "a fair trial within a reasonable time".
It was therefore wrong to expect tribunals to adjourn “heavy cases” which are fixed for a substantial amount of court time many months before they are due to start, in the hope that a claimant's medical condition might improve.
It concluded that if the medical experts could not give any realistic prognosis of “sufficient improvement within a reasonable time” and the case itself had to do with events in the distant past, striking out had to be an option available to tribunals.
It therefore upheld the decision of the EAT that it was no longer possible to ensure a fair trial in the circumstances of this case.
The Court followed the same reasoning as it had applied in the case of O’Cathail v Transport for London (LELR 258) heard just a few months earlier which had determined that the appropriate approach to strike out was that of unreasonableness, as opposed to fairness. This decision and O’Cathail resolve the previous conflicting EAT decisions.