Deficient defence

Although tribunals have the power to strike out a party’s case, the Employment Appeal Tribunal (EAT) has held in Arriva London North Ltd v Maseya that it should only be applied in exceptional circumstances after proper consideration as to whether the sanction to strike out is proportionate.

Basic facts

Mr Maseya, a qualified engineer, applied for a job as a PSV fitter with Arriva through a recruitment agency. However, the agency refused to put him forward for the job because he did not have a PCV licence and could not obtain one as he suffered from monocular vision.

Mr Maseya pursued a claim for unlawful disability discrimination in the tribunal on the basis that the requirement to hold a PCV or HGV licence to become a fitter amounted to a provision, criterion or practice (PCP) that indirectly discriminated against him, putting him and others with his disability at a substantial disadvantage. As such, Arriva was under an obligation to make reasonable adjustments.

Arriva responded that the requirement was necessary as fitters sometimes had to go out to breakdowns in a substitute bus and return non-working buses to the garage. It was, therefore, a proportionate means of achieving a legitimate aim and Mr Maseya had been treated in the same way as other non-disabled people without PCV licences were or would have been treated.

Tribunal decision

The tribunal struck out the company’s case after it transpired that Arriva did, in fact, employ some engineers without a PCV licence and had failed to disclose a list of engineers who did not have such a licence. The tribunal considered that the way Arriva had conducted itself in the proceedings was “scandalous and unreasonable”.

The tribunal found that the company had put forward what was effectively a false defence, and had failed to comply with its duty of disclosure. As such, the tribunal held that it was not fair, just or reasonable for Mr Maseya to have to face a further amended defence when the company had been represented throughout.

The company appealed against the decision to strike out its defence.

EAT decision

The EAT held that although the company’s defence lacked clarity, it could not be construed as a “defence deliberately intended or calculated to mislead”. It had not abandoned its argument that it was a requirement for fitters to hold a PCV licence, but rather relied on the wider PCP that the requirement to obtain a licence could be met after starting employment.

The tribunal’s decision to strike out the response was based on a fundamental misunderstanding of the case. It had not considered the claimant’s case or the documents. Had the tribunal understood and identified the PCP relied on there was no proper basis for concluding that the respondent’s response was false.

Further, there was no reason why disclosure could not be dealt with there and then; and in the absence of exploring this avenue as an alternative to the draconian sanction of a strike out the tribunal was not entitled to conclude that a fair trial was no longer possible.

The EAT therefore remitted the case to be heard by a fresh tribunal.