Many employment disputes become marathons, but even the law recognises that some cases simply go on too long to conclude fairly. An Employment Appeal Tribunal (EAT) recently addressed a critical question that is equally applicable to both businesses and employees – at what point does the passage of time make it impossible to hold a fair trial?
Background:
The appellant, Anthony Boateng, was employed by the respondent, Moss Bros Group Ltd., from January 2017. He was initially engaged as a sales adviser at the Strand store before being transferred to the Stratford branch, where he was promoted to hiring manager. Following an incident involving the claimant and several colleagues at the Stratford branch on 23 July 2019, he was dismissed for his conduct on 28 October 2019. His internal appeal was unsuccessful.
In early 2020, the claimant initiated legal proceedings involving a complex web of over thirty allegations of racial and religious discrimination dating back to 2017, alongside a claim for unfair dismissal. However, the path to a final hearing was blocked by two major external events. Firstly, the global pandemic caused significant systemic delays; secondly, the employer entered a Company Voluntary Arrangement (CVA)—a formal insolvency process—which stayed the litigation for over a year.
By the time the case was ready for a preliminary assessment in 2023, the evidentiary landscape had shifted dramatically. Of the 22 individuals identified as being involved in the alleged discrimination, 21 had since left the company. The retailer reported that 17 of those former employees were subsequently either impossible to find or else explicitly refused to participate in the case. With the earliest allegations now historical, the employer argued that they could no longer mount a meaningful defence, as the collective "memory of the firm" had essentially vanished.
Decision:
The EAT dismissed both appeals and confirmed that the Employment Tribunal (ET) was correct to strike out the discrimination claims under Rule 37(1)(e) of the Employment Tribunal Rules. This rule allows for the termination of a case if a "fair hearing" is no longer possible. In his judgement, Judge Auerbach emphasised that the ET’s role is to make an evaluative assessment of whether a trial can still be fair, and the EAT should only intervene if that decision is "plainly wrong".
The EAT found that the loss of nearly every key witness created a "substantial disadvantage" that transcended mere inconvenience. Because discrimination claims involve the burden of proof shifting under Section 136 of the Equality Act 2010, an employer must be able to call the specific person accused of discrimination to explain their mental processes. Without such witnesses, the employer is essentially stripped of their ability to discharge their legal burden. The EAT also supported the ET's refusal to "carve up" the case into smaller fragments, ruling that since the claimant was trying to paint an "overall picture" of a discriminatory environment, the employer was entitled to have all relevant witnesses available to challenge that narrative as a whole
However, regarding the separate unfair dismissal claim, the EAT upheld the decision to refuse a postponement. Even though the discrimination claims had been dismissed, the EAT ruled that the unfair dismissal case should proceed because the dismissing officer was still available to testify. The Judge noted that postponing the case again would likely push the hearing beyond 2026, which would be contrary to the "overriding objective" of the Tribunal to deal with cases expeditiously.
Implications:
This ruling serves as a vital reminder that the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) applies to both parties. While it is rare for a claimant to lose their day in court through no fault of their own, this case confirms that the loss of witnesses can be a valid ground for dismissal if it engenders a substantial disadvantage. For employees, it highlights the importance of pursuing claims promptly and keeping detailed contemporaneous records, as witnesses cannot be relied upon to remain available or 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 sometimes serve as a "documentary bridge" that allows a trial to remain fair. Finally, the decision clarifies that tribunals do not need to issue "witness orders" to force unwilling former staff to attend court before a strike out is granted. As the EAT noted, a witness who is forced to attend against their will is unlikely to provide the high-quality, reliable evidence required for a fair resolution of complex discrimination issues.
