Employment Tribunals have the power to strike out a claim at any stage if the case has no reasonable prospects of success. In the recent case of Cox v Adecco, the Employment Appeal Tribunal (EAT) found that an Employment Judge had erred in granting an application to strike out because the claims and issues had not been properly identified.
The EAT judge concisely summarised this judgment by stating:
“You can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.”
Before considering strike out, or making a deposit order, it is important that reasonable steps are taken to clearly identify the claims and issues. With a litigant in person, this involves more than just requiring the Claimant at a preliminary hearing to say what the claims and issues are. An Employment Judge may be required to read the pleadings and any core documents that set out the Claimant’s claim.
The EAT stated that Respondents and Tribunals should remember that repeatedly asking for additional information and further particulars rarely assists a litigant in person to clarify their claim and that requests for additional information should be as limited and clearly focussed as possible.
To some extent this case demonstrates it should be expected of employment Tribunal judges to assist litigants in person in identifying the issues in their claims but also highlights the need for precision when requesting additional information from Claimants. Whilst it can be tempting to make an application for strike out in cases where a Claimant fails to properly set out their claim, doing so without taking appropriate steps to obtain additional information may have little chance of success and could ultimately result in unnecessary time and costs being incurred.
For further information, or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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