Veitch Penny LLP - Exeter | Crediton, Devon

Case

Bolch v Chipman
Employment Appeal Tribunal - (19 May 2003)

Issues

(1) Employment Tribunal
(2) Proceedings conducted unreasonably
(3) Power to strike out

Facts

Proceedings were brought by the employee claiming unfair dismissal. Whilst the full hearing was pending, the employee complained to the Tribunal that the employer had made a threat against him. Following this complaint, the Tribunal heard, in the employer’s absence, an application to debar the employer from taking any further part in the proceedings.

The employer’s notice of appearance was struck out, in line with Rule 15 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 on the basis that the proceedings had been conducted unreasonably.

The employer complained that he had been absent due to the fault of the Employment Tribunal service. The order was set aside and the hearing restored.

The restored hearing, which had already heard part of the evidence in the employer’s absence, was continued by the same Chairman. The employer was refused permission to call his wife to give evidence as to the alleged threat.

The Tribunal found that the employer’s conduct had been unreasonable. It found that the employer had threatened the employee with physical violence. Consequently, the Tribunal struck out the employer’s notice of appearance and he was, in effect, debarred from taking any further part in the proceedings in respect of the unfair dismissal claim. The Tribunal ultimately concluded that the employee had been unfairly dismissed.

The employer appealed against the Tribunal’s decisions striking out his notice of appearance and holding that the employee had been unfairly dismissed.

Decision

The employer’s appeal would be allowed.

It was found that the course taken by the Tribunal had been inappropriate. Once it became apparent that the employer’s failure to attend had not been his fault, the hearing should have been treated as a nullity. The case should have been re-started. In this case, the employer had suffered further prejudice as he was not permitted to give evidence or cross-examine witnesses. On that basis, the decision to strike out the employer’s notice of appearance could not stand.

It was found that there was insufficient evidence to find that the employer’s behaviour had amounted to unreasonable conduct of the proceedings, because it would not have interfered with or prevented a fair trial from taking place.

The Tribunal’s findings and decisions were set aside and the matter was remitted to a differently constituted tribunal for rehearing.

Comment

Employment Tribunals have the power to order that any originating application or notice of appearance be struck out or amended on the basis that it is “scandalous, misconceived or vexatious”. This case confirms that unreasonable conduct in itself does not mean that a case should be struck out. For the Tribunal to consider striking out, there needs to be some significant default on that party or no prospect of a fair trial. The Tribunal should always consider other sanctions before striking out, such as allowing a defaulting side to attend for a limited purpose (such as a remedies hearing).

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