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Delaying a trial – is a fair hearing no longer possible?

A recent case at the EAT acts as a timely reminder that Tribunal proceedings cannot be postponed indefinitely and for significant periods of time. Where this happens there is a significant risk a fair trial may no longer be possible

ET Rules

Under the Employment Tribunal Rules, a Tribunal may strike out, at any stage of the proceedings, all or part of a claim or response, if it believes that a fair hearing is no longer possible, because for example memories have faded.

The Facts

In this case the claimant’s employment ended in 2009. He brought claims for race discrimination and whistleblowing. For various reasons, that were not the claimant’s fault, the hearing was delayed until 2012.  However, after that date, the hearing could not go ahead due to the claimant’s medical condition.

Eventually, the hearing was fixed for February 2014, but the claimant applied for a further adjournment of six months, based on doctor’s opinion. The Tribunal refused and struck the claim out because it believed that a fair hearing was no longer possible.

On appeal the EAT upheld the Tribunal’s decision, stating that it had been entitled to express a doubt that the claimant would in fact be fit to argue his case in another six months, taking into account the history of the proceedings. The Tribunal considered the medical evidence but felt that in reality, the adjournment would have resulted in a longer delay. The Tribunal had also taken into account the likely impact on the claimant of striking his claim out, but recognised that a ‘tipping point’ had been reached and a fair trial was no longer possible.

Although striking out of claims is rare, this may offer employers some reassurance that extensive delaying tactics by a claimant may be taken into account by the Tribunal when considering on-going management of a case.

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