Can a tribunal be fair after all is long said and done?
Employment disputes can drag on for years, which inevitably raises the question of how long is too long for a hearing to be deemed fair. Mr. Boateng was originally employed in January 2017 by a gentlemen’s outfitters at their branch in the Strand before being relocated and promoted to hiring manager. After an incident involving the claimant and several colleagues at the Stratford branch on 23 July 2019, he was ultimately dismissed on grounds of ‘misconduct’ on 28 October 2019 after an unsuccessful internal appeal.
In early 2020, Mr. Boateng initiated legal proceedings concerning over thirty allegations of racial and religious discrimination dating back to 2017, in parallel with a claim for unfair dismissal. However, the hearing was postponed for over a year due to the pandemic and a formal insolvency process. By the time the case reached a preliminary assessment in 2023, the evidentiary landscape had shifted dramatically, as 21 of the 22 individuals concerned had since left the company. Moreover, the outfitter reported that 17 of those former employees were either impossible to locate or else explicitly refused to participate in the tribunal. As the earliest allegations were by then historical, the employer argued that they could no longer mount a meaningful defence, as the collective "memory of the firm" had essentially dissipated.
Both tribunals concurred that the discrimination claims should be struck out under Rule 37(1)(e) of the Employment Tribunal Rules, which allows for the termination of a case if a "fair hearing" is no longer possible. As almost every key witness had been lost, this was deemed to have created a "substantial disadvantage" to the employer, one transcending mere inconvenience. As discrimination claims require an employer to be able to call the specific person accused of discrimination to explain their mental processes, per Section 136 of the Equality Act 2010, the narrative was fragmented. Thus, no balanced picture could emerge, as only the “dismissing officer” was still available to testify.
This case reiterates that both sides have the right to a fair trial under Article 6 of the ECHR, thereby highlighting the importance of pursuing claims promptly and of keeping detailed contemporaneous records, as witnesses cannot later be relied upon to remain available or indeed helpful so many years after the fact. For employers, this case demonstrates the value of conducting timely and thorough internal investigations and of obtaining and preserving witness statements. Thus, even if a staff member leaves the company, a robust written record created at the time of the grievance can serve as a "documentary bridge" to ensure a fair hearing.
