What's happening and what does this mean for you?
EAT 10 February 2023
A strike out of an ET claim or defence is often sought and seldom granted. What is ‘unreasonable’ behaviour?
Is this a way to resolve my claim?
Mr Smith was dismissed after ten years from his job as a customer assistant at Tesco. While shopping in his own time in the store, he was involved in an altercation with his store manager, an altercation that became physical.
There were further allegations of abuse towards a customer. The police were called.
He made an employment tribunal claim in November 2018 alleging unfair dismissal, race, and disability discrimination and unpaid monies. The claim was lengthy, and included allegations of discrimination dating back at least four years.
At a preliminary case management hearing the judge drew up a list of issues and table of facts and listed a second hearing to consider this further and to list a final hearing.
At this second preliminary hearing, the claimant added some further details and sought to amend his claim, including reinstating complaints he had previously agreed with the judge could be omitted. He submitted several additional lengthy documents.
A third preliminary hearing was listed and the judge recommended that the claimant take legal advice. He declined on the basis that he did not think this would be in his interests.
At the third hearing, the judge reassured the claimant that confining and defining the issues did not prevent him presenting evidence and further detail in due course.
She declined the respondent’s request to list a further hearing to determine whether any of his claims should be dismissed as out of time or lacking reasonable prospects of success but listed a further brief preliminary hearing for shortly before the trial to ensure both parties were ready.
This was not to be. The fourth preliminary hearing had to be converted to consider the claimant’s application to amend his claim and add another disability. The Respondent sought to have all claims struck out. The tribunal refused. The claimant wanted to add two more claims. These were refused also. The claimant continued to challenge the List of Issues but could not explain why. He asked for the opportunity to present further and better particulars.
Space precludes setting out here the entire sequence of events, but the claimant continued to add claims and seek amendments, despite the Order precluding him from doing so. Some of his claims such as indirect harassment did not exist in law.
A fifth and final preliminary hearing was heard on 17 March 2021. It was originally listed as an in person hearing but converted to a hybrid hearing due to covid concerns and the claimant’s preference for an in-person hearing.
The claimant attended the tribunal, at the wrong time, and persisted in addressing only the clerk, speaking over and ignoring the judge. He made comments about the judge and the respondent to the clerk. The judge, unsurprisingly, found this to be unreasonable and discourteous to the tribunal, especially since the claimant had attended four previous hearings and knew what was expected.
It was at this point the claim was struck out. The claimant’s conduct had been ‘scandalous, unreasonable or vexatious’ and it was ‘no longer possible to have a fair hearing’: In summary, the best attempts of both the respondent and the tribunal to deal with case had been frustrated and there was no suggestion that this would improve in the future should the case continue.
The claimant did not give up. He sought a reconsideration of the strike out judgment but notably did not ask for a final chance but rather accused the tribunal of trying to trick him. He suggested that his identity had not been verified when he had appeared at the hearing. The judge had “allowed emotions to cloud her judgment”. When this was refused, he appealed.
The Employment Appeals Tribunal agreed to hear one aspect of the claim, on the question of the strike out, and also suggested again without success that the claimant avail himself of legal help. Ultimately, the appeal failed and the Strike Out was upheld.
Key take-aways from this case
The take-away from this judgment is that the bar for strike out is very high indeed: “The courts of this country are open to the difficult”. Strike out is a last resort where there is no further prospect of a fair trial, not a short cut. What amounts to irritation, even exasperation on the part of the tribunal, never mind the respondent, is not necessarily ‘vexatious’ with in the meaning of the Employment Tribunal Rules of Procedure.
If the claimant appears to abandon their claim or the claims have – in the view of the judge, not the respondent – little prospect of success, the tribunal will still give the claimant a series of warnings known as ‘unless orders’ before reaching a final decision. This will be even more marked where the claimant is unrepresented.
Remember that claimants can also apply for the strike out of a respondent’s defence. While this is also a last resort, it is nevertheless important to make sure you comply with all directions and orders of the tribunal.
In another sea of change for struggling employers, the government hopes to tackle anomalies which arose out of last year’s Supreme Court ruling.
Let’s take a look at where things were left following the Supreme Court’s judgement in the famous Harpur Trust case.
We’ll then explain the government’s proposed changes and share what we think employers can expect to happen next.
Employers might be aware that term-time or ‘part-year’ workers – staff working part of the year on permanent contracts – are now entitled to a full year paid holiday allowance.
Following last Summer’s Supreme Court judgement in Harpur Trust, employers who pro-rated holiday entitlement for part-year workers had to immediately change their practice.
For many years, it had been common practice for employers to pro-rate holidays for part year workers. It was a perfectly logical and equitable approach. However, the Supreme Court ruled that such practices breached regulations 13 and 13a of the Working Time Regulations.
If you employ part-year workers, they must now receive a full 5.6 weeks’ holiday. You cannot prorate this amount to reflect the number of weeks they work. As an example, the holiday entitlement would become:
39 (weeks worked) + 5.6 (holidays) + 7.4 (unpaid leave) = 52
The Supreme Court Judgment provides part-year workers with an advantage over their full-time colleagues. They get a full year’s holidays for a part-year’s work. Part-year workers also gain an advantage over part-time colleagues (i.e. staff who work all year). Their holiday entitlement can still be pro-rated. For instance:
Full time member of staff working all year 5 days per week = 5 x 5.6 = 28 days holiday
Part-time member of staff working all year 3 days per week = 3 x 5.6 = 16.8 days holiday
Part-year member of staff working 5 days per week, term time only = 28 days holiday
Among the headaches, employers have faced unauthorised deductions claims or Working Time Regulations claims from individuals paid under the 12.07% percentage method and costly settlements. Employers have also had to consider hiring part-year workers on short-term, temporary contracts despite wanting to retain individuals key to the business’ aims.
Recognising these anomalies, the government has opened a consultation on how employers should calculate holiday entitlement for part-year workers, stating it should be ‘proportionate to the time they spend working’.
If enacted, the proposals will entirely upend the Supreme Court decision.
To address the disparity, the government proposes to replace the 52-week holiday reference period.
Currently, weeks in which no remuneration is earned are counted for part-year workers’ holidays.
In brief, it is proposed that:
Employers would be able to exclude weeks with no remuneration from the 52-week calculation. The intention being that they should receive no greater holiday entitlement than a part-time colleague who work the same number of hours but throughout the year.
The current requirement to calculate holiday entitlement based on a rolling 52-week period be replaced with a fixed period, based on the 52-weeks prior to the start of the current holiday year. This would mean that the worker’s holiday entitlement could be calculated at the outset of each holiday year (assuming they’ve been in employment for at least 52 weeks).
Confusingly, workers whose hours of work are irregular, but who work year-round, also appear to be included in the consultation.
We also view the proposition of discounting all weeks where no work is undertaken with caution. Doing so could, inadvertently, call into question any other leave a part-year or irregular hours worker might be authorised to take (e.g. sickness absence, maternity leave, sabbaticals, parental leave etc.) when calculating holiday entitlement.
Any legislative oversight or action taken by an overzealous HR practitioner could leave employers exposed to fresh claims.
Furthermore, for part-year workers without 52-weeks service, the government proposals suggest holiday entitlement could be calculated at the end of each month, based on hours worked. While this could work well for workers with fixed hours of work, it doesn’t for casual workers or those whose hours vary, making it difficult to plan ahead.
Importantly, the acceptable approach to take when calculating holiday entitlement for part-year workers, or indeed any workers on irregular hours, hasn’t changed.
Employers must continue to follow the findings of the Supreme Court decision in Harpur Trust and disregard the government’s current proposals.
In commencing the consultation, the government hopes to understand the implications of last year’s Supreme Court ruling for employers across all sectors.
Employers have until 8 March 2023 to respond to the consultation and help inform the approach to be taken by the government when putting forward new legislation to parliament.