by Laurie Anstis on February 2, 2011
The “Resolving Workplace Disputes” consultation paper sets out at pages 28 – 30 an enhanced set of options for tribunals to strike out weaker cases, bringing them to an end.
The proposals are for striking out to be possible at any hearing, without representations from the parties and without requiring a full ET3 to be lodged.
In this post I will look at the first of these proposals.
At present, striking out claims is only possible at pre-hearing reviews and full hearings. There is no power to strike out a claim in the third kind of hearing: a case management discussion. Case management discussions are typically concerned with preparing cases for a hearing – clarifying the claims and setting out the necessary preparatory steps for the parties.
It has sometimes been my experience as a lawyer representing parties in a case management discussion that the employment judge will take a very dim view of the prospects of success of either the whole (or more likely part of) a Claimant’s claim, but finds themselves powerless to do anything about it. It seems sensible that the employment judge’s hands should not be tied in such a case simply by it being the wrong kind of hearing.
However, if striking-out were to be allowed at a case management discussion it might well call into question their status as private hearings. It is highly convenient to parties dealing with embarrassing claims to have a case management discussion held in private, but would this still be the case if the case management discussion had power to strike out all or part of a claim? If case management discussions were to be held in public, then this may also call into question the very useful practice of holding case management discussion by telephone where all the parties are represented.
Finally, although the proposals concentrate on the idea of striking out weak claims, it ought to follow logically that these powers should extend to striking out all or part of weak defences, in the same manner.