Background
Ms Byczko, a former part-time theatre nurse employed by the NHS Trust, resigned in March 2022. She brought claims including disability discrimination, failure to make reasonable adjustments, constructive unfair dismissal, automatic unfair dismissal for whistleblowing, and whistleblowing detriment.
Her claim forms contained extensive narrative material but did not clearly identify the factual and legal issues supporting each claim. Over more than two years, the Employment Tribunal held several preliminary hearings, made adjustments for her asserted disabilities, gave additional time, used remote hearings and written communications, and prepared a detailed draft list of issues. Ms Byczko did not amend or engage with that draft as ordered, instead submitting a further lengthy document that expanded and obscured the allegations. The Tribunal struck out the claims for non-compliance, finding that a fair trial was no longer possible and that no lesser measure would suffice.
The Court’s Holding
The Employment Appeal Tribunal dismissed Ms Byczko’s appeal. It held that the Tribunal had correctly applied the two-stage approach to strike-out: first establishing a ground for strike-out, and then deciding whether strike-out was just and proportionate after considering alternatives.
Although an Employment Tribunal must fairly assist an unrepresented or disabled litigant, it remains impartial in an adversarial system and must not formulate that litigant’s case for them. The Tribunal had gone beyond ordinary assistance by attempting to translate the claimant’s materials into a usable list of issues, but Ms Byczko rejected that formulation and would not cooperate in identifying the claims to be tried.
The EAT also held that reasonable adjustments had been adequately considered and made. The Tribunal had explored an intermediary assessment as a possible further measure, which Ms Byczko declined. It was entitled to conclude that further hearings, staged final hearings, disclosure, or witness-statement directions would be unfair and disproportionate where the respondent could not know the case it had to meet.
Key Takeaways
- Strike-out remains a last resort, but may be proportionate where persistent non-compliance makes a fair hearing impossible.
- Tribunals may help litigants in person clarify their existing case, but cannot create or impose a case on their behalf.
- Fairness includes the respondent’s right to know the case it must meet and the need to allocate limited tribunal resources fairly among litigants.
Why It Matters
The decision draws a firm line between proper judicial assistance and impermissible advocacy for an unrepresented claimant. A tribunal should make reasonable efforts to clarify difficult claims, particularly where disability is in issue, but a claimant must ultimately cooperate with directions needed to define the dispute.
For employers and practitioners, the case confirms that a procedurally unmanageable claim may be struck out even absent deliberate misconduct where extensive assistance and lesser measures have failed. It is not, however, authority for routine strike-out of difficult claims.