No reasonable prospect of success | Employment Law Advocates

The Employment Tribunal Procedure Rules allow a claim to be struck out if it has no reasonable prospect of success but, unlike the Civil Procedure Rules, there is no formal procedure for determining whether this provision applies or not and there is little case law dealing with this matter. It is not uncommon for tribunals to proceed by hearing evidence on the substance of the case, making findings of fact and then making a decision on the basis of these findings. An example is the decision in Iteshi v London Borough of Hammersmith & Fulham.

The conclusion of the Employment Appeal Tribunal is unimpeachable because there was no ground of appeal on the point but I do think that the tribunal erred by hearing evidence. In particular, I do not think that it was permissible to make a finding at a pre-hearing review that race was not a factor in the decision not to employ the claimant. Such a conclusion could only be reached following a full hearing, by a properly constituted tribunal that has heard all the evidence.

I have three reasons for suggesting this. Firstly, to obtain a summary judgment in a civil case, the same test applies that the claim must be shown to have no reasonable prospect of success. However, no evidence can be heard in these circumstances and the weakness of the case must be demonstrated based on the facts as pleaded. While Employment Tribunal procedure does not always follow the Civil Procedure Rules, and is sometimes more onerous than them, it seems unlikely that a substantial departure from these principles was intended.

Furthermore, the case of Ezsias v North Glamorgan NHS Trust makes it crystal clear that a claim can only exceptionally be struck out where there are disputed facts. It seems unlikely that this issue can be avoided by resolving those facts at an early stage and the assumption in Ezsias appears to be that no such fact finding will take place. It states that a claim could possibly be struck out “where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation”, suggesting that considering the documents is appropriate but hearing oral evidence is not.

Finally, a marked comparison can be made with Rule 18(2) of the Procedure Rules, which states that an Employment Judge may only make an order for a deposit at a pre-hearing review “without hearing evidence”. If it is impermissible to hear evidence when resolving an application for a deposit, it would be very odd if there was a less strict rule for the more onerous sanction of a strike-out.