Background
Ms D worked for Greater Glasgow Health Board from 2015. After beginning a period of ill-health absence in October 2016, she was managed under the employer’s sickness-absence procedure and dismissed in April 2019. She subsequently brought numerous Employment Tribunal complaints, including unfair dismissal, disability discrimination, race discrimination, and whistleblowing detriment claims.
Ms D had PTSD, other mental-health conditions, and IBS. Medical evidence showed that the litigation itself severely exacerbated her PTSD and related symptoms. She found it difficult to follow and respond to proceedings, and the evidence indicated that she would not be able to attend a final hearing either then or in the future.
In February 2023, the Employment Tribunal refused Ms D’s application to strike out the employer’s response but struck out her claims under rule 37(1)(e) of the Employment Tribunal Rules. It concluded that a fair trial was no longer possible. Ms D appealed that decision.
The Court’s Holding
The Employment Appeal Tribunal dismissed the appeal. It held that the Employment Tribunal had made no error of law in finding there was no realistic prospect of Ms D becoming able to prepare for and participate in a final hearing within the foreseeable future. The case involved substantial factual disputes, making determination through written material alone unsuitable.
The tribunal was entitled to consider the prejudice caused by continuing delay, including expense to the employer and the effect on witnesses’ ability to recall events. Fairness had to extend to the respondent as well as the claimant, while also accounting for the demands on the tribunal’s finite resources.
Although striking out is a draconian measure, the Employment Tribunal had considered reasonable adjustments and lesser alternatives. A stay was unlikely to produce a different result given the medical prognosis and the proceedings’ continuing harm to Ms D’s health. The tribunal’s reasoning adequately addressed proportionality, and its discretionary decision fell within the permissible range.
Key Takeaways
- A claim may be struck out where a claimant’s health makes participation in a fair trial impossible for the foreseeable future.
- Even after finding that a fair trial is impossible, a tribunal must consider whether strike-out is proportionate and whether a lesser measure could work.
- Fairness includes prejudice to respondents and witnesses from prolonged delay, as well as the claimant’s circumstances and the tribunal’s finite resources.
Why It Matters
The decision confirms that illness-related inability to participate can justify striking out even where the claimant is not at fault. The central questions are whether a fair hearing remains realistically possible and whether reasonable adjustments, a stay, or another lesser measure could preserve the proceedings.
It also underscores the limited scope of appellate review. Where an Employment Tribunal has considered the relevant evidence, alternatives, and proportionality, the EAT will not overturn its discretionary judgment merely because another tribunal might have reached a different conclusion.