United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS W SOMMERVILLE (Solicitor) Messrs Brodies LLP Solicitors 2 Blythswood Square Glasgow Lanarkshire G2 4AD
For the Respondent	MRS M ABRAHAM (The Respondent in Person)


 


SUMMARY

PRACTICE AND PROCEDURE

Striking Out/Dismissal

Claimant in partial breach of unless order. Employment Judge incorrect to split the unless order to allow one claim to proceed once a breach has been established all claims subject to the order should be struck out subject to any relief granted under the review procedure.


 


HIS HONOUR JUDGE ANSELL

Introduction

1. This has been the hearing of an appeal against a decision of Employment Judge Willans, at the Bedford Tribunal, the hearing taking place on 14 May, it being a pre-hearing review, with reasons being sent to parties on 29 May.
2. The result of that pre-hearing review was that the Respondent's claims for sex discrimination were struck out but her claim for unfair dismissal proceeded. That decision followed an earlier unless order that was made and sent to the parties on 20 February. The Appellants had contended that there had been total non-compliance with that earlier order. The Employment Judge found that there had been partial non-compliance and as a result effectively split off the order, allowing the unfair dismissal claims to continue.
3. The Appellant's contentions for me today could be summed up quite shortly, namely that once the Employment Judge had found there had even been partial non-compliance with an unless order, that order should automatically come into force and take effect, unless there was an application for review and relief from sanctions, which certainly, formally, there was not in this case and, therefore, the Appellant asked that I should effectively strike out both claims on the grounds that the unless order came into effect.
4. Mrs Abraham, who has appeared in person throughout, was employed by the bank between 1993 and February 2008, when she was dismissed on the grounds of performance and conduct matters.
5. The ET1 was lodged on 1 May 2009, raising claims of unfair dismissal, disability discrimination and sex discrimination and was responded to in an ET3 on 3 June.
6. The first substantive order followed a case management discussion on 16 October 2008, with written notification being sent to the parties on 31 October. That order gave directions about the provision of a schedule of loss on or before 13 November 2008. Further particulars were to be supplied by 13 November in relation to a list of the six clearest and strongest alleged acts of sex discrimination and the six clearest and strongest acts of alleged disability discrimination, together with identities of any comparatives. There was to be disclosure of documents by 28 November and further provision in relation to the bundle and witness statement.
7. Without going into detail, there is no dispute that there was non-compliance with that order and as a result the Appellant asked for a further hearing and for an unless order. There was a hearing on 10 February which Mrs Abraham did not attend (a pre-hearing review), and the Appellant contend that an unless order was made on that date.
8. The order that was sent out to the parties on 20 February said this, and it is headed "Notice of Order":

"The following Order has been made. Under Rule 12(2) any party affected by the Order may apply to have it varied or revoked."

9. The order then went on as follows:

"So as to arrive on or before 10 March 2009, the Claimant is ordered to send to the Respondent, with a copy to the Tribunal, an account of the facts specified in the schedule below. The facts are required to show reasons why the claims for disability discrimination, sex discrimination, and unfair dismissal should not be struck out for failure to comply with an Order."

10. There was then a schedule which very much repeated what was in the earlier order, namely, first of all, a schedule of loss with details, details of the sex and disability discrimination, details of the comparator and notification of the documents to be included in the bundle.
11. On 10 March, the last day for compliance, the Respondent wrote to the Tribunal and the employers purporting to comply with that order and on the same day she withdrew her disability discrimination claim. The Appellant, taking the view that there had been non-compliance, asked for a hearing and, indeed, it is that hearing which is the subject of this appeal. That hearing was attended by Mrs Abraham, together with Ms Sommerville, who has appeared before me today.
12. The Employment Judge, having recited the earlier order, repeated what had been contained in the letter summoning the parties to that hearing, which was the purpose of the PHR was:

"… to consider whether the Claimant has complied with the unless order of the 20^th February 2009 and whether the claim was to be regarded as struck out or whether it should be struck out."

13. Having repeated that purpose, the Judge then went on to analyse the material that had been produced and in summary form he was satisfied that the Respondent had failed to comply with the unless order and I quote from paragraph 10:

"… insofar as the allegations of sex discrimination were concerned and, consequently, her claim in that respect should be regarded as struck out on the date of non-compliance."

14. However, he refused to do so in relation to the unfair dismissal claims on the grounds that a schedule of loss had been produced and also that documents had been produced, so that effectively that part of the order he found had been complied with. In addition the Tribunal also determined that the sex discrimination would have been time-barred.
15. Leave to appeal for this hearing was given by Judge Peter Clarke in chambers by an order dated 15 July 2009.
16. The relevant provisions in relation to a strike-out can be seen in two of the regulations contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1. The Rules of Procedure contained in schedule 1 provide at paragraph 13:

"(1) If a party does not comply with an order made under these Rules, under Rule 8 of schedule 3, Rule 7 of schedule 4 or a practice direction an Employment Judge or tribunal (a) may make an order in respect of costs, or preparation time under Rules 38-46 or (b) may, (subject to paragraph (2) and Rule 19) at a pre-hearing review, or a hearing make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether;

(2) An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under Rule 19 or hold a pre-hearing review or hearing."

17. A further power to strike out is contained in the more general provisions, rule 18, which governs the conduct of pre-hearing reviews, and under Rule 18(7)(e) an Employment Judge may make a judgment or order striking out a claim or response for non-compliance with an order or practice direction.
18. The first issue that I need to address is the original unless order. When I first read that order I was troubled by the preamble that I have already referred to above that commences with the words "so as to arrive" and in particular the second sentence of that paragraph which, to repeat, sets out the position as follows:

"The facts required show reasons why the claims for disability discrimination, sex discrimination and unfair dismissal should not be struck out for failure to comply with an order."

19. I raised with Ms Sommerville, appearing for the Appellant, whether or not that sentence did give some discretion, albeit that it was termed an unless order, to a judge to consider the nature of a non-compliance with the order and if possible give him discretion to split up the various claims as this judge did, allowing one to proceed and the other one to be dismissed. Ms Sommerville's answer to that was that this particular paragraph referred back to the original failure to comply with the orders contained in the case management orders given in October 2008 and that the correct interpretation of this paragraph was that even if Mrs Abraham had supplied all the documents in compliance with the unless order, it was still open to a judge to give consideration to a rule 18(7) strike-out for non-compliance with the original directions. When one sees the words "failure to comply with an order", it seems to me that that must be a correct meaning to this preliminary paragraph. I should add that it was not suggested to the Judge at the hearing in May, nor did he contend that the power which he thought he had to split off the various claims derived from this particular paragraph in the 20 February order.
20. Turning to what the Employment Judge did; did he have power to allow part of the claim to proceed on the grounds that there had been, in his view, partial compliance with the unless order? Ms Sommerville answers the matter clearly and succinctly in her submissions, both written and oral, namely that he did not have the power. Once it was determined that there had been non-compliance, even partial non-compliance, the order came into effect and the Employment Judge was wrong to seek to exercise discretion in the way that he did. Her submissions, put succinctly, are as follows. She argues that the Tribunal had no discretion as to whether or not the entire claim should or should not be struck out because a claimant has failed to comply with an unless order. She submitted that an unless order is an all-or-nothing order and that the sanction of strike-out takes effect automatically as a result of the failure to comply, even if it is partial failure. Secondly, she argued that there was no requirement to make an application in order to activate that sanction, once it has been determined that there was a failure to comply. The only purpose of the May hearing was simply to determine whether there was or was not a failure, either in part or in whole, but once determined that there was a partial failure, the order took effect. The only relief available would be for a party in default to apply under the review procedure, rule 34, to apply for relief from sanctions if he or she wished to escape its consequences, in which case the court would have to apply the checklist contained in the civil procedure rules 3.9(1). She argues that in this case, there was no application either for review or relief.
21. She referred me first of all to the Court of Appeal decision in Marcan Shipping (London) Limited v Kefalas & Anor [2007] EWCA Civ 463 where Moore-Bick LJ reviewed the cases on unless orders and strike-out and I am satisfied that the principles which Ms Sommerville has set out are clearly established from that decision. At paragraph 28 the Court of Appeal said, in relation to automatic strike-out under the CPR rules:

"That is reflected in the following observations of Brooke LJ in Sayers v Clarke Walker (Practice Note) [2002] 1 WLR 3095:

"The philosophy underpinning CPR Pt 3 is that rules, court orders and practice directions are there to be obeyed. If a sanction is imposed in the event of non-compliance, the defaulting party has to seek relief from the sanction on an application made under CPR 3.9, and in that event the court will consider all the matters listed in CPR 3.9, so far as relevant."

As a result a clear distinction is maintained in the CPR between the operation of the sanction and the exercise of the court's discretion to grant relief. That is reflected in the terms of rule 3.5(1) and (2) which allow a claimant to enter judgment without further order where the claim is for a sum of money or for the delivery of goods or payment of their value and the sanction is the striking out of the defence in its entirety."

22. At paragraph 34 the learned Lord Justice went on as follows:

"In my view it should now be clearly recognised that the sanction embodied in an "unless" order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect. … It must be assumed that at the time of making the order the court considered all the relevant factors and reached the decision that the sanction should take effect in the event of default. If it is thought that the court should not have made an order in those terms in the first place, the right course is to challenge it on appeal, but it may often be better to make all reasonable efforts to comply and to seek relief in the event of default."

23. In that paragraph the court went on to say this:

"Unless the party in default has applied for relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not arise."

24. At paragraph 35 Moore-Bick LJ went on to say this:

"The second consequence, which follows from the first, is that the party in default must apply for relief from the sanction under rule 3.8 if he wishes to escape its consequences. Although the court can act of its own motion, it is under no duty to do so and the party in default cannot complain if he fails to take appropriate steps to protect his own interests. Any application of this kind must deal with the matters which the court is required by rule 3.9 to consider."

25. Under paragraph 36, the third consequence is set out as follows:

"The third consequence is that before making conditional orders, particularly orders for the striking out of statements of case or the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case."

26. Moore-Bick LJ made it clear that the purpose of any further hearing was simply for the court to determine whether there has been either partial or complete non-compliance and once the court so determined, then the sanction of strike-out came into effect, subject to the second stage, namely any application for relief.
27. Those principles applied in civil procedure have been accepted in this court and in particular HHJ Peter Clark in the case of Neary v The Governing Body of St Albans Girls' School & Hertfordshire County Council UKEAT/0281/08/LA made it clear that that approach was one which would be followed in this court. Indeed, in the course of his judgment, he made reference to the Marcan case (see paragraph 25).
28. It seems to be, therefore, that once, in this case, Employment Judge Willans had determined that there was partial non-compliance, the automatic order, which had been made previously in February and had not been appealed or reviewed, came into effect.
29. The issue which I considered in the course of submissions from Ms Sommerville was whether or not the Judge should, of his own motion, have considered the issue of relief. He, of course, did not approach the case on that basis; he approached it on the basis that he could split off the unless order and that was clearly wrong, but as Ms Sommerville pointed out, there was no application for review or relief and, therefore, there was no analysis of the various factors that have to be considered applying CPR rule 3.9(1) and I am persuaded that, although Mrs Abraham was acting in person, it would have needed, certainly, some application by her to invoke the court's powers of relief and there was no such application before the court.
30. It must, therefore, follow that the Employment Judge was in error in keeping alive the unfair dismissal claim and that this appeal must be allowed. It would be allowed to the extent that the unfair dismissal claim is also struck out but I will add the rider, subject to any application made by Mrs Abraham to the Employment Judge for review and relief. I make it clear Mrs Abraham, that if you are going to make an application, you must do it within the next seven days. I am not going to say that that is going to be successful, the order should say, "Review or relief (out of time)" because the application will be out of time and I cannot give you that leave.