Background:

In 2019 the claimant raised grievances about other judges and court staff.  The grievances related to events starting in 2015.   In 2020 the grievance was dismissed as being out of time under the policy.    The claimant then commenced proceedings stating that there was a failure to deal with the grievance in a reasonable time, she should not have been asked to provide a schedule listing the complaints and that they were not out of time.

Outcome:

The respondent sought to strike out the claim and in part this was allowed.  The Tribunal struck out all of the claims with the exception of the one which related to the decision not to determine the grievance on its merits.

The claimant appealed the decision to the EAT.  On the issue of delay the claimant alleged that it amounted to victimisation and disability discrimination.   The EAT stated that there had to be realistic assessment of the circumstances in determining whether there was no reasonable prospect of success. There were undisputed facts relating to the length of time it took for the grievance and the EAT found that the decision to strike this claim out was correct.

In terms of being asked to provide a schedule of complaints it was found that it was a request rather than an instruction.  The EAT agreed with this assertion and that it was entirely unexceptional to request the schedule as it would have clarified the matters complained of. As a result, the appeal was dismissed.

Practical Guidance for Employers:

This case relates to issues of strike out powers and when the Tribunal can exercise those.  It is clear that it is easier to make a determination as to whether there is no reasonable prospect of success when there are undisputed facts as occurred here.  That should be taken into account for respondents who are asking the Tribunal to strike out the claim being made.

https://www.gov.uk/employment-appeal-tribunal-decisions/hhj-kalyany-kaul-kc-v-1-ministry-of-justice-2-the-lord-chancellor-3-the-lord-chief-justice-2023-eat-41