Victory on Employer’s Right to a Hearing

A landmark ruling at the Employment Appeal Tribunal (EAT) this week restored an employer’s right to defend an unfair dismissal claim brought by a former employee.

Mr Justice Burton, President of the EAT, overruled the Employment Tribunal in Norwich, and went on to announce guidelines for Employment Tribunals on when they are allowed to exclude parties from cases in this way.

Mr Chipman, a plumber, had started Employment Tribunal proceedings against his former employer, Mr Bolch. Some months later, he complained that Mr Bolch had made threats to him about the consequences, should he pursue the claim. At a hearing on 19 July 2002, the Tribunal accepted this complaint as true. They viewed Mr Bolch as conducting the case in an unreasonable way, and on that ground, they struck out Mr Bolch’s response to the unfair dismissal claim, and debarred him from taking any further part in the case. They went on to find that Mr Chipman had been unfairly dismissed.

The power to strike out an application or response is given to Tribunals where "the manner in which the proceedings have been conducted…[by the employer or employee] …has been scandalous, unreasonable, or vexatious". Following Mr Justice Burton’s guidelines, employment tribunals must now consider the following questions:

- Was the party’s behaviour actually related to the proceedings?
- If so, was it scandalous, unreasonable, or vexatious?
- Even if it were, could a fair trial still be possible?
- If a fair trial with the full participation of the party would not be possible, because of their behaviour, striking out should not be the automatic response; the tribunal must look at the remedy or penalty that would be proportionate to the behaviour concerned.

The EAT did not accept that any reasonable tribunal could have concluded that Mr Bolch threatened Mr Chipman. Mr Bolch’s response to the unfair dismissal claim was restored. The claim will now be heard again by a different Employment Tribunal, with Mr Bolch’s full participation.
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