Tribunals have the power to strike out a claim if it has not been “actively pursued” and it is no longer possible to have a fair hearing. In Elliott v The Joseph Whitworth Centre Ltd, the Employment Appeal Tribunal (EAT) held that although people leaving an organisation or going abroad could not be used as reasons as to why there could not be a fair trial, fading memory could be.
Mr Elliott was dismissed from his job as a caretaker by the Joseph Whitworth Centre (JWC) in early February 2010 and submitted a claim for unfair dismissal on or around 30 April that year, just within the three month time limit.
The Employment Tribunals Service should then have acknowledged the claim and written to Mr Elliott’s representative either accepting or rejecting it within a few weeks, but did not do so. Unfortunately his representative did not chase the tribunal office until early February 2012 asking what had happened to it.
The tribunal accepted the claim form at this point and served it on JWC. It lodged a response resisting the claim but also applying to have the matter struck out on the basis that it was no longer possible to have a fair hearing because memories had faded.
Following submissions from the representatives of both parties (but no evidence from anyone) at a pre-hearing review (PHR), the judge decided that because of the “inordinate and inexcusable delay on the part of the claimant in pursuing the claim” the resultant delay meant that a fair trial was no longer possible.
Mr Elliott appealed, arguing that as the judge did not hear any evidence about whether memories had faded and had not asked JWC to call a witness or to produce a witness statement from anyone saying that they could not remember events clearly enough anymore to ensure a fair hearing, she was not in a position to come to that decision.
The EAT, however, disagreed with Mr Elliott, holding that the judge could not be criticised for her approach. She was not given any oral evidence to hear and given that it would have been unfair to put JWC to the test in a full hearing, it would have been equally unfair to require it to produce evidence at the PHR.
The fact that JWC had made “a good fist” at a defence did not get away from the fact that it would face problems in putting live evidence before a tribunal. Although Mr Elliott had kept notes of relevant meetings, the employer had not or at least they were no longer available. Although people leaving an organisation or going abroad could not be used as reasons as to why there could not be a fair trial, fading memory could be.
The judge had also considered the issue of prejudice that was bound to occur in these kinds of cases. For instance, claimants with a strong case which is struck out; or an employer who has to defend itself against a weak case which is not struck out. Courts therefore look for something more, such as fading memories, missing documents and witnesses or a change of representation.
The EAT concluded that it is pre-eminently a question of fact for a first instance judge to decide what is a delay, and whether it is inordinate. In light of the response of the tribunal and the acceptance by the union that it sat on its hands, she was entitled to form the view that the delay in this case was inexcusable.
In reaching its decision, the EAT referred to Evans v The Metropolitan Police Authority, in which the Court of Appeal had decided that the principles in Birkett v James apply in employment tribunals. In particular, that tribunals have the power to strike out a claim in the event that “there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim”. In Birkett itself the Court of Appeal explained that “inexcusable delay” might include delays in complying with the court’s orders and/or directions. What is surprising about the present case is that the EAT has found that ‘inexcusable delay’ can include a failure on the claimant’s part to chase an acknowledgment from the tribunal where there is no formal rule, requirement or obligation on them to do so.