Schedule 1 r.9(1) and r.13(1) Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 could not be construed to give a power to an employment tribunal to strike out an originating application on the ground that it had no reasonable prospect of success.
Appeal by the defendant from a decision of the Employment Appeal Tribunal ('EAT') of 12 July 2000 dismissing its appeal from the decision of an Employment Tribunal ('ET') that had held that it did not have jurisdiction to strike out an originating application on the ground that it had no reasonable prospect of success. The claimants brought an action alleging victimisation contrary to s.44 Employment Rights Act 1996. Witness statements were served by the claimants shortly before the hearing and on the morning of the hearing the defendant applied for an order that the applications be struck out on the ground that if all the documentary evidence was factually correct then there was no reasonable prospect of the claimants succeeding. The EAT agreed with the ET that it did not have jurisdiction to consider such an application. The hearing was adjourned whilst the defendant appealed to the Court of Appeal contending that the EAT had not given sufficient weight to the provisions of Sch.1 r.9(1) Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 SI 1993/2687, whereby a tribunal was empowered to conduct a hearing as it considered appropriate for "the just handling of the proceedings".
HELD: (1) The tribunal was a creature of statute and the issue of whether it had jurisdiction to consider the application turned on the construction of the 1993 Regulations, particularly Sch.1 r.9(1) and r.13(1). (2) Although there was authority (see Hackney London Borough Council v Usher (1997) ICR 705 and Coral Squash Club Ltd (1979) ICR 607) that a tribunal could consider a submission of no case to answer at the close of a claimant's evidence, it did not apply to a case such as the present where the claimants' evidence had not yet been completed. Pursuant to its powers under r.9 of the 1993 Regulations, the tribunal could have ordered that the witness statements stood as the claimants' evidence-in-chief in which case it would have been possible for consideration of a submission of no case to answer, but that was not done in this case. (3) Authorities such as Eurobell (Holdings) plc v Barker (1998) ICR 299 and Marks & Spencer plc v Martins (1998) IRLR 326 dealt with striking out for procedural defects and did not support the submission that an application could be struck out on the ground that there was no reasonable prospect of success. (4) Although it might be desirable for a tribunal to have the power to strike out an application where it was, in law, bound to fail, such an application would by its nature be scandalous, frivolous or vexatious and be capable of being struck out under r.13 of the 1993 Regulations. (5) The employer was seeking a summary disposal of the case based upon the witness statements of the employees. The jurisdiction of the tribunal was governed by the 1993 Regulations which specified the circumstances in which, and the terms upon which, an order to strike out could be made. To incorporate the power to strike out as provided by CPR 3.4 would have been contrary to the 1993 Regulations. Appeal dismissed.
Laura Cox QC and Paul Epstein instructed by BUPA Legal Department for the defendant. Ian Scott instructed by Bolt Burdon for the claimants.