Strike Outs

[Thanks to James Medhurst of Employment Law Advocates for preparing this case summary]

The decision of the EAT in Balls v Downham Market School is an interesting case about strike-out. The Claimant's wife was also employed by the Respondent. She pleaded guilty to stealing from it. The police did not bring any charges against the Claimant, but he was also dismissed on suspicion of complicity with the crimes of his wife.

Unfair dismissal claims were brought by both the Claimant and his wife, and were ordered to be heard together by the tribunal against the wishes of the Claimant. Both cases were struck out but the appeal of the claimant was allowed because the tribunal had treated the claims in the same way although their circumstances were different. It had allowed the merits of the wife's case to cloud its view of the Claimant's case.

On appeal, the EAT stated that, in considering a strike-out application, a tribunal should have regard to documents in the tribunal file even where specific matters are not raised verbally. In this case, the opposition of the Claimant to joining the claims would have alerted the tribunal to the fact that they could not be treated as one and the same.

An appeal was also allowed against a finding that the claimant had failed to pursue his claim where the claim had been stayed and he had not responded to "a number of singularly unhelpful, apparently enigmatic letters from the Tribunal which he was then criticised for not dealing with" (para 60, where the EAT is deeply critical of the tribunal). It was held that it should have been obvious that he was asking for the stay to be lifted.