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In a significant judgment reinforcing procedural fairness, the Employment Appeal Tribunal (EAT) has allowed an appeal in Forrest v Amazon Web Services EMEA SARL UK Branch, reinstating a former employee’s discrimination claims after they were struck out by the Employment Tribunal (ET) for procedural non-compliance.
Background: Disability Discrimination and Procedural Dispute
The claimant brought multiple claims before the ET, including allegations of disability discrimination, failure to make reasonable adjustments, harassment, and victimisation. However, the ET found that the particulars of claim lacked sufficient clarity, prompting an order for the claimant to respond to a list of issues raised by the employer.
When the claimant failed to respond, the employer applied to strike out the claims. The ET granted the application, citing persistent and deliberate delay and warning that the claimant had been notified of the consequences of non-compliance.
EAT: Error of Law and Failure to Ensure Fair Trial
On appeal, the EAT found that the ET had committed a legal error by failing to ask the essential question: whether a fair trial remained possible. According to the EAT, a strike-out should only occur where there is either:
Persistent and deliberate disregard of procedural obligations, or
A fair trial is no longer possible.
Crucially, the ET had treated these as separate and alternative grounds and made its decision based solely on the former, neglecting the requirement to assess whether a fair trial could still proceed. This misapplication of the legal test rendered the strike-out decision unsafe.
No 'Unless Order' Issued Prior to Strike Out
The EAT also criticised the ET for failing to issue an “unless order”—a conditional order requiring compliance before claims are automatically struck out. The claimant had subsequently complied with the requirement to respond, indicating that an unless order would likely have achieved the intended outcome without prematurely ending the proceedings.
The EAT emphasised that immediate strike-out without an unless order is a drastic step and should only be taken in the rarest of cases. Given the claimant's status as a litigant in person and a disabled individual, the ET should have exercised greater procedural flexibility.
Implications for Employers and Litigants
This decision serves as a timely reminder for tribunals to balance case management efficiency with claimants’ rights to a fair trial, particularly where disability or litigant-in-person status may affect procedural compliance.
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