1st February, 2021

Assunta Del Priore acted for the successful respondent in Riann Duvenage v NSL Ltd, UKEATS/0002/20/SS before the Scottish EAT

Assunta Del Priore acted for the successful respondent in Riann Duvenage v NSL Ltd, UKEATS/0002/20/SS before the Scottish EAT, Lord Fairley presiding.

Does a party bringing a strike-out application in the Employment Tribunal have a right to elect an oral hearing of the application?

It is clear under the ET Rules 2013 that the party on the receiving end of a strike-out application has the right to elect an oral hearing of the application (Rule 37).  Such a hearing must be in public (Rule 56).  This case concerns whether there are circumstances in which the party bringing the application has the right to elect an oral hearing. 

The Tribunal below had decided Mr Duvenage’s strike-out application against the Respondent on the papers.   On appeal, he argued that the effect of Rule 37(2)  of the ET Rules 2013, read together with Rules 53 and 56, was that he was entitled as of right, upon request, to an oral hearing of his application to strike out the Respondent’s ET3.  He argued that A6 of the ECHR was engaged, and that the Tribunal below had acted in breach of it.  In finding for the Respondent on this appeal, Lord Fairley considered the application of the ET Rules to the facts of this case.  He examined the issues in light of Convention and Common Law principles, including the right to a fair trial and the requirements of open justice.



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