Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary
Can a tribunal strike out a case when a fair hearing is impossible, because of delay caused by the tribunal not serving the ET1 for nearly two years? Yes, held the EAT in Elliott v The Joseph Whitworth Centre Ltd.
Mr Elliott presented his claim on 30th April 2010. But it did not reach the Respondent, the Joseph Whitworth Centre, until February 2012.
The delay was caused by errors in tribunal administration, compounded by a failure of Mr Elliott’s representative to make enquires.
The Joseph Whitworth Centre applied for strike-out under rule 18(7)(f), on the basis that a fair hearing was impossible. They argued that the delay meant that memories would have faded.
The tribunal agreed and struck out the claim.
Mr Elliott appealed, arguing that the Judge had not heard evidence as to the witnesses’ recollections and, therefore, her conclusion that they had faded was unsustainable.
The EAT dismissed the appeal. HHJ McMullen QC noted that whether a fair hearing was pre-eminently a question of fact for the tribunal and the EAT would rarely interfere. He added that the Claimant’s remedy probably lay elsewhere.