Struck out because of failure to pursue claim

A claim which has not been actively pursued or is considered to not have a chance of a fair hearing can be struck out by the employment judge.  But should the claim be struck out when the tribunal was at fault in not processing it?

In one such case, the claimant’s trade union presented a claim form for unfair dismissal in April 2010.  Normally the employment tribunal service would write to the claimant’s representative acknowledging receipt of the claim and simultaneously send a copy to the respondent. However, at that time, the tribunal was piloting a new computer system and was experiencing considerable administrative difficulties.  Because of this it took no action in respect of the claim form and failed to write to the claimant or process the claim.

The trade union did nothing until February 2012, when it contacted the tribunal service enquiring what had happened in respect of the claim and enclosing a further copy of the claim form.  The tribunal, realising its error, accepted the claim and served a copy of the necessary form on the respondent.  This was the first time that the respondent was alerted to the fact that a claim had been made, even though it was almost two years since the claimant had been dismissed.

The respondent made an application to have the claim struck out because it had not been actively pursued by the claimant; it also claimed it was no longer possible to have a fair hearing in these proceedings because memories would have faded and that would prejudice the case should it be heard.

The employment judge agreed and struck out the claim.  The claimant’s union appealed to the employment appeal tribunal but it refused to overturn the original judgment.

The message here is that it is absolutely essential that a claimant or his representative ensures that the claimant’s form has been received and accepted by the tribunal.  If the tribunal does not confirm receipt in writing, a telephone call should be made to ensure the claim is being processed.

The limitation period for most employment claims is three months.  If, for any reason, the claim is not presented properly within that time, the claimant may be barred from making the claim.

In the case mentioned here, the claimant’s only recourse is to sue his union or the tribunal service.  His opportunity to make a claim for unfair dismissal has passed.