Osborne v Premium Care Homes Limited, EAT,4 October 2006
Mrs Osborne worked at the nursing home as a manager until her dismissal. She brought an unfair dismissal claim, engaging a barrister who undertook pro bono work.
The tribunal ordered the exchange of documents and witness statements by certain dates and fixed a hearing date. Osborne complied with these orders, but the company requested an extension and a postponement of the hearing. New dates were set. When the company also failed to comply with the revised dates, the tribunal wrote to the company, pointing out that it risked its response to the claim being struck out unless satisfactory reasons for not complying were given. The company responded that preparation of its case was in hand.
Osborne applied for the hearing to be adjourned and the company’s case struck out if she did not receive its material at least one day before the hearing. On the morning of the hearing, the company gave Osborne’s barrister a 26-page witness statement and numerous supporting documents. The company’s case was struck out, as the tribunal said a fair trial was no longer possible. The company appealed.
The 2004 Tribunal Rules give various instances in which a tribunal may consider striking out a claim, including failure to comply with tribunal orders. Striking out is a last resort and must always be a proportionate response to what has taken place. For example, in a case such as Osborne’s, postponing the hearing and penalising the company financially might have offered a fairer sanction.
The Employment Appeal Tribunal (EAT) upheld the strike-out decision. It found, however, that not only had the company shown blatant disregard for the tribunal’s orders, but two key issues distinguished this case from others: the company had the advantage of seeing Osborne’s statements before providing its own and, since Osborne’s barrister was acting pro bono, constant adjournments and delays jeopardised that representation and rendered any award of costs irrelevant.
A recent spate of cases concerning the power to strike out a case has shown that this will only be appropriate in extreme cases. Had the company communicated better with both Osborne and the tribunal and avoided one-sided disclosure, the outcome might well have been different.