Order to strike out upheld where it was held that the respondent would be unfairly disadvantaged due to the lack of witnesses, they could call following a company voluntary arrangement following the pandemic.

The claimant brought discrimination claims in 2020. These claims related to incidents which allegedly took place from 2017 until 2020. The respondent entered a company voluntary arrangement due to the pandemic and in 2023 they applied to have the discrimination claims struck out. The Tribunal held that the respondent would be unable to call witnesses to defend the claims – some 17 of the 22 individuals mentioned in the complaints no longer worked for the employer and were either uncontactable or unwilling to participate. The claimant appealed this decision to strike out the claims to the EAT.

The basis of the appeal was that the Tribunal had erred in failing to consider whether the attendance of witnesses could be done by way of a witness order, failed to consider whether the complaints could be adjudicated upon in the absence of material witnesses and that the decision was to strike out all claims rather than determining whether some could have gone ahead.

The EAT dismissed the appeal. The rules allowed for the Tribunal to strike out a claim if it was no longer possible for the claim or response to be fairly tried. This gave discretion to the Tribunal and the EAT could only intervene with such a decision where no reasonable Tribunal would have made that decision. The Tribunal had not erred in failing to expressly address whether witness orders would have provided a simple solution. Such orders may not have had the required effect as the witnesses may not have complied and they may not have given evidence along the lines anticipated.  In totality, the Tribunal did not err in determining that the employer would be at an unfair disadvantage because of the unavailability of key witnesses especially in the context of having the burden shifting on them as could occur in a discrimination case.

This case was regarded as being fact sensitive considering the voluntary arrangement and the amount of employees no longer with the employer.  As the Tribunal had to determine whether a fair hearing could occur – they took into account the extent to which the respondent would be unable to discharge their burden should it pass to them in a discrimination case.  This would put them at a disadvantage, and the Tribunal did not err in making the order to strike out the claims.

You can read the case in full here.