If a claimant fails to pursue a claim that she has lodged at the tribunal – for instance, by failing to provide information that it has requested – it can strike out the claim. In Norey v Jazz Hair & Beauty, the Employment Appeal Tribunal (EAT) held that, given the claimant’s failure to provide the details requested about her age discrimination claim, the tribunal was entitled to strike it out.
In late 2018, Ms Norey submitted an ET1 claim form alleging age discrimination, unlawful deductions and holiday pay. The tribunal then wrote to her on 4 January 2019, asking her to provide additional details relating to her claim of age discrimination.
When it did not receive a reply, the tribunal wrote to her again on 8 February, warning her that it was considering striking out her claim because she was not actively pursuing it.
On 10 February, Ms Norey’s lay representative, Ms Beckett, asked the tribunal to send her a copy of the 8 February letter. This was forwarded to her the next day, along with the original letter dated 4 January.
On 15 February 2019, Ms Beckett informed the tribunal that she was on holiday until 16 February, that she had forwarded the paperwork and that she would email a copy of the evidence on her return. However, no further information was received.
The tribunal then struck out all Ms Norey’s claims on the grounds that she was not actively pursuing them. Nor had she made representations in writing as to why it should not strike them out. That judgment was dated 27 February and was sent to the parties on 28 February.
Ms Norey appealed on the grounds that the tribunal was wrong to strike out her money claims, given that firstly she had provided sufficient detail in the ET1 for those claims to be pursued; and, secondly, the tribunal's direction regarding particularisation of the claim did not relate to those complaints.
Allowing the appeal, the EAT agreed with Ms Norey that she had provided sufficient details to allow the money claims for outstanding pay and holiday pay to be calculated.
In addition, as Ms Norey had pointed out, the strike out warning related to the age discrimination claim and therefore required her to provide particulars of that claim, as opposed to the money claims.
In the view of the EAT, it was therefore disproportionate for the tribunal to go on and strike out all Ms Norey’s claims, particularly given the further details of those claims that she had sought to provide by way of two letters in January 2019. It therefore remitted the claims to the same employment judge to consider in the light of the information provided by the parties about the figures.
As for the age discrimination claim, the EAT held that it had been legitimately struck out.
It also issued a word of warning to Ms Norey herself, pointing out that she could not expect the tribunal to pursue her claim on her behalf. “She is responsible for pursuing her claim and must properly engage with the litigation process. If she fails now, without good reason, to do so, she can expect robust case management to be exercised”.
Finally, it noted that if she was unwell and unable to attend a hearing (she said she could not attend the appeal because of ill health), she would have to provide evidence of that illness.