EAT overrules ET’s strike out decision as Judge acted Wednesbury unreasonably



This case concerns the ET’s decision to strike out the case of a disabled litigant in person at a pre-hearing review because of his failure to comply with case management directions.

The Claimant suffered from Post-Traumatic Stress Disorder, stress and depression. The claimant arrived at the Tribunal shortly after the decision to strike out all of his claims had been taken. He explained that he was having a psychotic episode and that the papers in support of his case were being copied at the printers next door. The Employment Judge recorded in her judgment that the Claimant was obviously unwell, and appeared to be suffering from a psychotic episode. Nevertheless, the Employment Judge proceeded with the hearing, and refused the Claimant’s application for a review of her strike out decision.

The EAT concluded that the Employment Judge had acted Wednesbury unreasonably in failing to grant the claimant an adjournment to regain his lucidity and obtain the papers in support of his case from the printers next door. The EAT held that the fact of the appellant’s disability (which was known to the Employment Judge) was an important factor which must be considered by an Employment Judge when making case management decisions, in accordance with the overriding objective and reflecting good practice as advised by the Equal Treatment Bench Book.

The EAT also held that the Employment Judge had ‘set a trap for the unwary’. Although the Employment Judge had informed the claimant that he could apply for a review of her decision to strike out his case, she failed to inform him that the application did not need to be made immediately, and could be made within 14 days in writing.

Claire Darwin was involved in this case.