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Strike Out

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Can a claim be struck out at a closed preliminary hearing?

No, held the EAT in Mendy v Motorola Solutions UK Ltd, overturning a case management decision that had the effect of striking out the Claimant's indirect discrimination claim.

At a closed preliminary hearing, the Employment Judge, grappling with a claim including 64 pages of particulars, had overlooked an indirect discrimination claim, and made a case management order, purportedly under Rule 29, that there was no discernible indirect discrimination claim in the case. This had the inadvertent effect of striking out the Claimant's indirect discrimination claim. The order was later revoked by the judge.

The EAT upheld the Claimant's appeal and noted that the effect of the order had to be determined objectively: it had finally determined the Claimant's indirect discrimination claim, so it was effectively a strike out under Rule 53(1)(c), and akin to a judgment. As it had been made at a closed preliminary hearing in breach of Rule 56, and without following Rule 37(2), providing for a reasonable opportunity to make written representations and/or have an open preliminary hearing, it was wrong in law. The subsequent revocation of the order (under Rule 29) was ineffective, as the 'judgment' could only be revoked by reconsideration under Rule 70 or on appeal to the EAT.

The EAT noted that in clarifying claims at preliminary hearings, tribunals must recognise that clarification of claims requires care in defining how claims are put. Tribunals can direct that further particulars be given, or if claims have little or no reasonable prospect of success follow Rules 39 or 37 for deposit or strike out orders.

Thanks to Ed McFarlane of Worknest LAW for preparing this case summary.