In circumstances that will be starkly familiar to those responsible for responding to claims brought by litigants in person, HHJ James Tayler has launched a scathing attack on an Employment Tribunal striking out a claim before the issues had been properly identified (Cox v Adecco UKEAT/0339/19/AT(v)). In doing so, the Employment Appeal Tribunal (EAT) has clarified the duties on respondents to assist a litigant in person to properly identify and clarify their claims. This raises a hurdle to be passed before applying to strike out complex claims brought by litigants in person which respondents must address very early on in any case in which this application might be made.
The claimant’s claim
The claimant’s claim was that he had been subjected to a detriment and dismissed for making protected disclosures. At an initial case management preliminary hearing, a schedule to the order set out the issues, although without identifying all of the information that the claimant needed to advance if his claim were to succeed.
Each of the three respondents made applications for the claim to be struck out or for deposit orders, and a further preliminary hearing was listed to dispose of those applications. In advance of that preliminary hearing, the claimant was ordered to provide additional information in respect of the disclosures on which his claim was based.
By the time the applications came to be considered by Employment Judge (EJ) Martin, she did not have a complete list of issues to work from. Instead, the claimant’s claim was, at that time, contained in a number of documents, including the claim form, additional information, a Scott schedule and draft amended particulars of claim. At the hearing, the onus was squarely placed on the claimant to identify his claim at the hearing, rather than by reference to the documents.
EJ Martin decided that the claimant’s claims had no reasonable prospects of success and exercised her discretion to strike them out. The claimant, with no doubt considerable assistance from their Advocate, appealed to the EAT.
The approach of the EAT
HHJ James Tayler allowed the appeal, giving an authoritative status to the basic proposition that “it is important, wherever possible, to have properly identified the issues in a case before considering strike out”.
After noting the well-known authorities relating to the circumstances in which it is appropriate to strike out a discrimination or whistleblowing claim, he also drew attention to the dicta in those authorities that encourage the tribunal to take an active role in assisting litigants in person to identify the issues in their claims. He emphasised that, even if the threshold for a claim to be struck out has been passed, an order to strike out a claim is nonetheless discretionary. Part of the exercise of that discretion “may involve consideration of whether an amendment should be permitted should the balance of justice in allowing or refusing the amendment permit if it would result in there being an arguable claim that the claimant should be permitted to advance”.
HHJ James Tayler emphasised the duty on respondents to assist the tribunal in identifying the documents in which the claim is set out, encouraging them to roll up their sleeves and identify, in reasonable detail, the claims and issues as a prerequisite of considering whether the claim has reasonable prospects of success. Respondents should:
“..assist the tribunal to identify the documents, and key passages of the documents, in which the claim appears to be set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer, and take particular care if a litigant in person has applied the wrong legal label to a factual claim that, if properly pleaded, would be arguable.”
This was backed by an express statement that failures to do so will not be looked on kindly by the EAT should the case reach that stage: “In applying for strike out, it is as well to take care in what you wish for, as you may get it, but then find that an appeal is being resisted with a losing hand.”
Clearly seeking to avoid suggestion that the duties being imposed are entirely one-sided, HHJ James Tayler noted that litigants in person are also under responsibilities to explain their claims clearly, focus on their core claims, and appreciate that where additional information is requested, it is with the aim of clarifying, and where possible simplifying, the claim. However, respondents and tribunals were reminded that repeatedly asking for additional information and particularisation rarely assists a litigant in person to clarify the claim.
Once those principles had been set out, the appeal itself was straightforwardly dealt with. Although EJ Martin had been in a difficult situation because the claims and issues had not been properly identified before the preliminary hearing at which she struck out the claimant’s claims, she then made her position more difficult by failing to properly identify the issues with reference to the various documents in which the claimant had attempted to bring his claim. Having taken that approach, she had failed to take into account relevant information set out in those documents. Among other substantive errors of law relating to the requirements for making a protected disclosure, the appeal was therefore allowed and the case remitted to a differently constituted Employment Tribunal. HHJ James Tayler identified those matters which that tribunal would need to consider to have properly identified the claims and issues before considering the respondents’ strike-out applications.
Although the basic proposition on which HHJ James Tayler’s decision is based is unarguable, the decision gives no tangible guidance to Employment Tribunals or respondents as to how to actually identify the issues in complex claims brought by litigants in person. Instead, the guidance appears to be limited to a suggestion that, by looking hard enough at all documents in which the claimant has provided details of their claim, the claims and issues will be sufficiently clear. Those representing respondents in cases against litigants in person will appreciate that as a best-case scenario which is often not borne out in practice.
However, some guidance can be drawn out from the decision which may assist in ensuring that strike-out applications do not fall on this initial hurdle. A list of issues should be drafted at the first available opportunity, by reference to any documents in which the claimant provides details of their claim (even if an amendment is strictly required to bring these matters with the scope of the claim which has been formally brought). Any requests for further information should be as focused as possible, by reference to that list of issues.
Ultimately, respondents are likely to be expected to show that they have complied with their duty to assist litigants in person in identifying their claims before any application for strike out is considered. Care should be taken to ensure that the building blocks for this reassurance are created in the initial response to the claim and any preliminary requests for further information. HHJ James Tayler’s judgment is likely to make Employment Tribunals more cautious about prematurely determining strike-out applications, and respondents would be well advised to ensure that they plan an appropriate course to show that the claim is as well clarified as it can be when these applications come to be determined.