When an Employment Tribunal claim is received, and throughout the tribunal process, companies often look to see if there are grounds to get the claim struck out.
But how easy is it for this to be achieved?
Criteria for Employment Tribunal Claims
In order for Employment Tribunal claims to progress through the system there are some clear criteria that the claim needs to meet.
- Firstly, it needs to be submitted within a strict time frame. An employee (or ex-employee) has three months minus one day from the event, in which to bring a claim.
- Secondly, the claim needs to be submitted on the relevant form (ET1) which must be completed accurately and fully.
- Additionally, the claim does need to relate to an area of employment law!
Responding to an Employment Tribunal Claim
When an ET1 is accepted by the Employment Tribunal Service it is immediately forwarded to the respondent who then reviews the claim and submits a response on a form called an ET3. The schedule of events following this will vary from case-to-case.
For more information on the process, read “What should you do if a claim arrives?“
One thing that companies will look to do, wherever possible, is to find grounds for getting the case struck out. A recent case, however, has demonstrated how hard this can be.
Ahmed v Bedford Borough Council
In this case, the claimant brought a claim for disability against the council. A pre-hearing review meeting was held to determine whether the claimant was disabled as per the legal definition of the term. As part of judge’s orders from this pre-hearing review meeting, the claimant was required to undergo a medical examination. This medical examination never happened.
The respondent made three applications for the case to be struck out due to the failure of the claimant to adhere to the judge’s order. On the third application, a hearing took place where the judge did strike out the case on the grounds that the claimant’s behaviour was “scandalous, unreasonable or vexatious”.
On appeal, the EAT overturned this decision as they did not feel that the tribunal had fully considered the three principles relevant to striking out a claim.
Considerations When Striking Out a Claim
There are three questions which a tribunal has to consider when determining whether or not a claim should be struck out. These are:
- Was the conduct complained of scandalous, unreasonable or vexatious?
- Was the result of that conduct that there could not be a fair trial?
- Is the sanction of strike out proportionate?
In this particular case the EAT ruled that the tribunal had not directly considered whether the claimant’s behaviour meant that a fair trial could not be conducted or whether a lesser sanction was more appropriate.
What Can Employers Do?
Clearly, employers have little control over the outcome of applications to have claims struck out but one option that employers can consider are “unless orders”.
These orders state that a party to the case has to complete a certain action by a certain date and that, if this action is not completed, a defined sanction is imposed.
In this particular case, Bedford Borough Council could have requested that an “unless order” be issued in respect of the claimant undertaking a medical examination. The sanction requested could have been that if the claimant failed to undergo a medical examination then the case would be struck out.
Employment Tribunal claims are always stressful for employers so if you do find yourself facing a claim we suggest seeking early guidance.
You can give us a call on 0203 319 1649 and we’d be more than happy to have a chat with you about your situation. Alternatively, drop us an email using the contact form and one of our advisers will be in touch.