Strike-outs are rare in employment law cases, as they are generally seen as a very serious step which should not be undertaken lightly. A recent Employment Appeal Tribunal (EAT) case has demonstrated the criteria that a claim should meet for it to be struck out.
In the case of Chamber-Mills v Allied Bakeries, the established position on strike-outs was reiterated. Mrs Chamber-Mills made a claim against Allied Bakeries on the grounds of disability discrimination, only to have her case struck out at a Case Management Discussion, on the grounds that her conduct had been unreasonable and that she had not complied with orders from the tribunal. She went on to appeal the decision.
The EAT referenced the Court of Appeal’s decision in the case of Blockbuster Entertainment Ltd v James in making its decision, which clearly lays out the two “cardinal conditions” that should be looked for when determining if a case should be struck off. The unreasonable conduct must either have:
- Shown a deliberate and persistent disregard of procedural steps; or
- Made a fair trial impossible.
Once one of these conditions has been met, the tribunal can then go on to decide whether the “draconian remedy” of a strike-out is a “proportionate response”.
In Mrs Chamber-Mill’s case, the tribunal wrongly assumed that both cardinal conditions must be met before a strike-out could be considered. Although this was wrong, it clearly tipped the balance in favour of Mrs Chamber-Mills, as this was a more stringent criterion than should have been used. The fact that her conduct was still judged to be reason enough for her case to be struck off, despite the use of the overly-harsh qualifying criteria, clearly demonstrated that the strike-out was warranted, and her appeal was dismissed.
If you believe that you have a valid employment law claim to make against your employer, the above case shows how important it is to have expert legal advice to ensure that your case moves forward as smoothly as possible and avoids the procedural pitfalls that could result in the untimely failure of your claim. As highly experienced employment law specialists, Ashby Cohen are the ideal choice if you want to give your claim the best possible chance of success.
3 responses so far ↓
1 Support for Litigants in Person int the ET // Aug 10, 2009 at 9:25 am
Anyone who knows the full & accurate details of Mrs Chambers-Mills claim will know that your assertion above that “The fact that her conduct was still judged to be reason enough for her case to be struck off, despite the use of the overly-harsh qualifying criteria, clearly demonstrated that the strike-out was warranted”, is incorrect.
The case however does demonstrate that Claimant’s acting in person (especially in complex cases) in the Tribunal (which was intended to be an informal forum)can be easily denied access to justice & fair hearing as a result of the respondent being able to afford and so have the advantage of legal expertise who knows how to work around the Tribunal rules & procedures to their advantage; some would say, allowed to do so by the ET.
Firstly, the legal authority is that a case or claim cannot be struck out at a case management discussion unless there was an existing order under Rule 13(2) at the time of the strike out. Where in the Transcript of Judgment does the ET or EAT takes that into consider?
This case also does even more beckons the need for & the presence of recording of cases where the Claimant is a litigant in person.
2 Anonymous // Jun 4, 2010 at 5:55 am
Please see Appeal in Court of Appeal Chambers-Mills v Allied Bakeries [2009] EWCA Civ 1414 (26 November 2009)
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1414.html
3 Anonymous // Jun 4, 2010 at 5:56 am
Update _ Chambers-Mills obtained permission to appeal. Please see Appeal in Court of Appeal Chambers-Mills v Allied Bakeries [2009] EWCA Civ 1414 (26 November 2009)
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1414.html
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