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Tribunal Procedure

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Sometimes a judge really ought to be commended for their succinctness. Cox v Adecco is a case in point. Before making a strike out or similar order, said HHJ Tayler: "You can't decide whether a claim has reasonable prospects of success if you don't know what it is."

Before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and the issues in the claims. This is an especially important point where you have a litigant in person.  Doing so involves more than just asking the Claimant at a Preliminary Hearing to say what the claims and issues are. That is not enough.

The Employment Judge should read the pleadings and any core documents that set out the Claimant's case. This was not done in the Cox case and so the Judge was wrong to rule a claim of protected disclosure detriment or dismissal had no reasonable prospects of success. And apart from the failure to consider the papers fully enough, the tribunal misdirected itself as to the test for whether alleged protected disclosures were, in the reasonable belief of the Claimant, made in the public interest; and, finally, failed to properly analyse to whom the disclosure was made, and whether it was arguable that any qualifying disclosure was protected.

Thanks to Dr John McMullen of Spencer West LLP for preparing this case summary.