Cox v Adecco Strike Out of An Employment Tribunal: It’s not what they said, it’s the way that they said it

April 16th, 2021

The recent case of Cox v Adecco involved an appeal on the issue of the striking out of claims.  The striking out of an Employment Tribunal claim is quite an unusual occurrence, as has been detailed in a previous blog on this site.  The case of Cox v Adecco itself has not provided any great revelations on strike out employment tribunal orders.  In fact the decision on the strike out application of an employment tribunal probably would have flown under the radar were it not for the wonderfully, and somewhat brutal, succinctness of HHJ Tayler’s judgment. The straightforward and accessible judgment opens with:

“You can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.”

In short, before ordering a claim be struck out the judge must review the pleadings and the core documents that set out the Claimant’s case.  A judge cannot assess whether the claim has no, or little, reasonable prospects of success if she/he does not really understand it.

HHJ Tayler sets out a helpful nine point reminder of general propositions when considering potential strike out:

  1. No-one gains by truly hopeless cases being pursued to a hearing;
  • Strike out of an employment tribunal is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate;
  • If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate;
  • The Claimant’s case must ordinarily be taken at its highest;
  • It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is;
  • This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim;
  • In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing;
  • Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer;
  • If the strike out of an employment tribunal claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

This blog is written by Tess Barrett, solicitor at didlaw

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