Written by An Employment Tribunal ruling today has sparked controversy after a claim was struck out on procedural grounds, despite the respondent’s own alleged failures in disclosure and engagement. The decision, made under Rule 38 of the Employment Tribunal Rules, has led to concerns over judicial impartiality and the treatment of self-represented litigants.
The case involved a senior professional dismissed after raising serious patient safety concerns. The claimant had alleged that their treatment amounted to whistleblower retaliation, yet the judge remarked that they “did not see any evidence” of a whistleblowing claim—a statement that appeared to disregard the content of the ET1.
A Prejudged Hearing?
Observers noted that, despite this being a pre-preliminary hearing, the judge allowed Capsticks LLP—representing the respondent—to undermine the claimant’s witness statement unchallenged. The legal team was permitted to diminish the significance of key evidence, while the claimant faced a rigid and disproportionately strict interpretation of procedural rules.
Employment lawyers have pointed out that while procedural compliance is essential, tribunals are expected to apply the overriding objective: ensuring that cases are dealt with fairly and justly. The handling of today’s hearing, however, raises the question of whether the claimant was held to a higher standard than Capsticks, a firm notorious for its aggressive litigation tactics in NHS employment disputes.
A legal analyst remarked: “Capsticks is well known for deploying procedural manoeuvres to have claims thrown out before they can be properly heard. What’s troubling here is the judge’s apparent willingness to indulge these tactics while holding a self-represented claimant to an unreasonable standard.”
A One-Sided Approach to Procedural Failings?
The tribunal was unmoved by Capsticks’ own procedural misconduct, which included delayed disclosure, password-protected documents, and refusals to engage constructively in the litigation process. Despite these failings, the judge appeared unconcerned with the respondent’s conduct while choosing to strike out the claim based on the claimant’s procedural position alone.
This has led to questions over judicial objectivity, particularly as the judge’s ruling mirrored Capsticks’ submissions with little consideration of balancing factors. One employment law specialist noted: “The tribunal seems to have applied a completely different standard to the two parties. Capsticks delayed disclosure, obstructed the bundle process, and yet the only party facing consequences was the claimant. That’s not procedural fairness—it’s procedural bias.”
Next Steps – Can This Be Challenged?
Legal experts have suggested that this decision could be challenged via a Rule 30 application to set aside the strike-out, arguing that:
- The judge pre-judged the claim, making substantive comments at a procedural stage.
- The double standard applied to the claimant and Capsticks amounts to a failure to ensure a fair hearing.
- The claimant’s status as a Litigant in Person was ignored, despite clear case law suggesting tribunals should offer reasonable latitude to unrepresented claimants.
If the Rule 30 application is unsuccessful, an appeal to the Employment Appeal Tribunal (EAT) may follow. If it can be demonstrated that the judge erred in law or acted unfairly, the strike-out could be overturned.
Judicial Complaints on the Horizon?
While challenging the ruling remains the priority, this case raises the broader question of judicial conduct and accountability. There may be grounds for a complaint to the Judicial Conduct Investigations Office (JCIO), particularly given the judge’s preliminary dismissal of a whistleblowing claim without full consideration of the evidence.
One employment lawyer noted: “It’s one thing for a judge to make a tough procedural call. It’s another for them to mischaracterise a claim, disregard the pleadings, and openly side with a respondent’s legal team. That crosses into judicial misconduct territory.”
A Broken System?
Today’s ruling reignites concerns about access to justice for self-represented claimants. With high-profile firms like Capsticks using procedural tactics to eliminate claims before they reach a full hearing, some are questioning whether the Employment Tribunal system is still fit for purpose.
As one commentator put it: “Tribunals were designed to be an accessible forum for justice, but rulings like this show how claimants without expensive legal representation are treated differently. If procedural fairness is only for those who can afford it, the system is fundamentally broken.”
The next steps in this case could be critical—not just for the claimant, but for the wider question of fairness, impartiality, and the role of corporate law firms in shaping employment justice.
Disclaimer
This article is based on publicly available information, tribunal observations, and legal analysis. It represents an opinion on procedural fairness within the Employment Tribunal system and the litigation tactics employed by law firms. All statements are made in good faith and without malice.
The article does not allege any unlawful conduct by Capsticks LLP or any other named party. It is intended to highlight broader issues of access to justice, procedural fairness, and the challenges faced by self-represented litigants.
Readers are encouraged to form their own opinions and seek independent legal advice where necessary. If any party feels that information presented is inaccurate or misrepresentative, they are welcome to provide a formal response for clarification.