Striking Out Tribunal Claims

Thanks to Will Young of Outer Temple Chambers for preparing this case summary

Can a discrimination claim be struck out for a wilful failure on the part of a Claimant to comply with tribunal orders? Not unless consideration has been given to whether the failure has rendered a fair trial impossible, according to the EAT in the case of Ahmed v Bedford Borough Council.

The Claimant brought claims of race, religious belief and disability discrimination, but unreasonably failed to comply with the tribunal’s order that he be examined by a medical expert for the purposes of a PHR on the issue of disability. The tribunal struck his claim out in its entirety as a result.

The EAT held that the issues in such a situation were: whether the conduct in question was scandalous, unreasonable or vexatious; whether a fair trial was still possible; and whether the sanction of strike out was proportionate. In this case there was insufficient consideration of the latter two conditions (for example whether a lesser sanction was appropriate), and the matter was remitted back to a different employment Judge.