Employment Appeal Tribunal Partially Upholds Strike-Out Appeal, Highlighting Right to Representation
The Employment Appeal Tribunal partially allowed an appeal against a strike-out, emphasising the right to legal representation during hearings.
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Tribunal Reverses Strike-Out Decision on Procedural Grounds
The Employment Appeal Tribunal (EAT) has partially allowed an appeal concerning the strike-out of an employment tribunal claim. The EAT ruled that the original tribunal had erred in preventing the claimant from consulting with her newly instructed representative before responding to a strike-out application. This decision underscores the importance of a litigant's right to representation, even during complex mid-hearing procedural matters.
Key Issues and Findings
The claimant, Mrs Mojibola Odusanya, appealed an Employment Tribunal's (ET) decision to strike out her claims. The ET had based its decision on the claimant's alleged unreasonable conduct, including discussing her case with her sister and a representative while still under oath, contrary to repeated warnings. The ET concluded that a fair trial was no longer possible.
The EAT considered five grounds of appeal. Grounds 2 and 3 were upheld, finding that the claimant's statutory right to representation was infringed. The tribunal had not permitted her to consult with her representative regarding the strike-out application, and this denial constituted a breach of natural justice. The EAT noted that while a witness under oath should not discuss their evidence, fairness can require allowing a litigant to seek advice on procedural or legal issues that arise during a hearing.
However, Grounds 1, 4, and 5 were dismissed. The EAT found that the original tribunal's application of relevant case law, such as *Chidzoy v BBC*, was not fundamentally flawed. Furthermore, the tribunal's findings regarding the claimant discussing her evidence were sufficient, even if the precise content of those discussions wasn't fully ascertained. The EAT also indicated that, had the correct procedure been followed and the same factual findings made, strike-out could have been a proportionate response.
Right to Representation and Natural Justice
His Honour Judge Beard highlighted that the ET's refusal to allow the claimant to speak with her representative before responding to the strike-out application was a significant procedural failing. This was particularly pertinent as the claimant was a litigant in person facing a complex and potentially case-ending application. The judge likened the situation to a "rabbit in the headlights," emphasising the stress and disadvantage a litigant in person might face without timely legal advice.
The EAT stressed that the right to representation under the Employment Tribunals Act 1996 extends to obtaining advice on critical procedural matters arising during a hearing. Preventing such consultation, especially when faced with a strike-out application, risks unfairness and undermines the principle of a fair trial.
Case Remitted to a Different Panel
While the strike-out decision was set aside based on the procedural errors concerning representation, the EAT noted that the original respondents could renew their application. Crucially, the EAT ruled that the case should be remitted to a different tribunal panel. This decision was made to avoid any residual impression or lack of trust from the previous panel's findings about the claimant's credibility.
Read the entire judgement here: Mrs M Odusanya v 1. Pennine Care Foundation Trust & Others [2026] EAT 5
