Although tribunals have discretion with regard to how claims are managed, the Employment Appeal Tribunal (EAT) held in Mukoro v Independent Workers’ Union of Great Britain and ors that they are not entitled to strike out a claim just because they think it would be in the claimant’s best interests to do so.
Basic facts
Ms Mukoro, who suffered from anxiety and depression, was dismissed in November 2016 after 16 months in the role of legal department co-ordinator. She brought a number of complaints including discrimination and unfair dismissal.
After multiple hearings were postponed due to her ill health, the tribunal struck out some of her claims at a hearing in March 2018. The union asked for the rest of her claims to be struck out. After further delays, a hearing was listed for September 2018. However, on the morning of the hearing, Ms Mukoro’s daughter, Romany, emailed the tribunal at 8.18 am and telephoned them several times to explain that her mother had an emergency appointment with the dentist and therefore needed the hearing to be adjourned.
Tribunal decision
After delaying the hearing by several hours, the tribunal decided to refuse the application and also struck out the remaining claims on the basis that by continuing, it would increase the “likely damage” to Ms Mukoro’s well-being. It therefore did not think it was required to make reasonable adjustments (thereby enabling the claim to continue) if doing so would “prolong the destructive effects of the litigation” on her as a claimant.
Ms Mukoro asked the tribunal to reconsider its decision, but this was refused. She appealed to the EAT on the basis that the tribunal was wrong to take into account the effect on her health of continuing the proceedings as that was not relevant to the question of whether a fair hearing was possible.
EAT decision
The EAT agreed that the tribunal was wrong to take Ms Mukoro’s health into consideration when it refused her application for an adjournment. Firstly, it should have focused on the need to avoid a potential injustice, particularly given that the proceedings were likely to be dismissed if the hearing was not adjourned. Secondly, it had failed to take other relevant considerations into account, namely Romany Mukoro’s email of 8.18am, and her subsequent telephone conversations with the tribunal clerk to explain why her mother was unable to attend.
Since the EAT decided that the hearing should have been adjourned, it followed that Ms Mukoro’s claims should not have been struck out at the hearing. Although it did not need to address all the issues which arose on the appeal against the strike-out, it nevertheless held that the tribunal was wrong in law to decide that it was in Ms Mukoro’s best interests to strike them out. Apart from the fact that this was not a ground for striking out a claim, it was not relevant to the question as to whether a fair hearing was possible.
The EAT added that although the tribunal was entitled to look at the medical evidence in order to consider whether Ms Mukoro would be able to participate effectively in the proceedings, it was not appropriate to use that evidence to form a view about whether it was in her best interests to continue with her claims. Unless a claimant lacks capacity, they are entitled to exercise their own judgment on questions such as whether to continue or to withdraw a claim. In other words, they are entitled to “respect for their autonomy”.
The EAT therefore ordered a fresh hearing of the union’s' application for an order striking out Ms Mukoro’s claims.