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Monday, 07 January 2013 21:57

Does the power to strike out infringe article 6?

Written by  David Renton
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A reader of the blog writes and asks me: "Is a PHR to strike out a claim automatically unfair under article 6 of the European Convention of Human Rights?"

They continue:

"1. The ET1 and ET3 have been accepted by the Tribunal

2. However, to achieve an "early knock out" the respondents representatives have requested the case be struck out

3. Understandably as is the normal practice, the ET3 and a request letter make various claims dismissing the ET1

4. The claims are to be subjected to a PHR in essence placing the original claims in the accepted ET1 on trial before being the subject of a full CMD

5. The PHR is a public hearing. This trial (PHR) is of procedural laws which are questionable by article 6. Not only questionable but the claim is already substantially disadvantaged as it is from an unrepresented claimant with little resource and incomprehension of the complex reasoning of the applicable laws

6. If the claim is tried under these arrangements, with outcome for the respondents. It is argued, the trial would be totally unfair and an infringement of article 6

7. So, does the process requested by the respondents' representatives form an infringement of article 6?"

My answer is as follows:

I've written elsewhere about article 6 and the Coalition's reforms. And I've also set out before the – relatively limited – circumstances in which a claim can be struck out.

In principle, any claim at the ET potentially involves the determination of a Convention right. From the recent case of Redfearn, it seems that even a dismissal (which I for one had always thought of exactly the sort of economic or social process that was normally outside the Convention) is capable of being an infringement of article 11.

Article 6 implies that the determination of a Convention right requires potential access to a full proportionality hearing. Article 6 does not require that every hearing however should be a proportionality hearing. We know this from the recent Court of Appeal decision in Turner v East Midlands Trains Ltd during which the Court of Appeal held that an unfair dismissal hearing applying the range of reasonable responses ("RRR") is an adequate determination of an article 8 claim, even though such a hearing is not in ECHR terms a full proportionality review. The point made by Elias LJ and Sedley LJ in the Court of Appeal was that what constitutes a fair hearing will depend on the full facts of the case. The example they were considering was an ordinary misconduct dismissal which, if upheld, would be likely to damage the reputation of the claimant. In those circumstances, their Lordships held that each of the common law and the ECHR required more careful scrutiny of the facts than you would ordinarily get at an RRR hearing. The key, it follows, is that there is a Judge applying procedure flexibly according to the facts of the case. This, the courts would see it, is exactly what should happen – and does happen – at a PHR.

We also knows this from housing law, where a series of ECHR cases resulted in the present position (see Manchester v Pinnock) that domestic court processes which mean that a party can never have ask to a full proportionality hearing are in breach of article 6; but to satisfy article 6, all you need is a preliminary hearing before a Judge, who will look at all the facts of the case, and decide whether the case requires a full hearing. What happens in a housing case where a tenant seeks to raise a proportionality defence, is that there is a preliminary hearing, where the courts assesses the merits of the defence, and if proportionality would add anything the case proceeds, but if not, the defence will be struck out.

That procedure in housing law has an exact counterpart – I'm afraid – in the PHR procedure at the Employment Tribunal.

If determination at a preliminary hearing is (potentially) compliant with art 6 in housing, then I can't see how how determination using the same procedure in employment would be automatically unfair.

That said, not every cases at a PHR is struck out. My view is that in light of this case only around 10% or so of the cases where employers seek PHR should actually be struck out. But there are sufficient safeguards in the ordinary ET/EAT procedure. Article 6 won't take you any further.

Last modified on Monday, 07 January 2013 22:00
David Renton

David Renton

Barrister 
Garden Court Chambers 

Website: www.gardencourtchambers.co.uk/barristers/david_renton.cfm E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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