SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
Did Employment Judge err in striking out for failing to comply
with “unless” order? To grant relief by way of a review.
THE HONOURABLE MR JUSTICE WILKIE
Introduction
1.
This is an appeal by Mrs McMichael against an order of the
Employment Tribunal sitting at Southampton, Employment Judge Simpson, striking
out, with effect from 12 March 2010, her claims made under ET proceedings
which started on 12 September 2008, by reason of her failure to comply
with an unless order made on 15 January 2010. In these proceedings she
was making claims of race and religious discrimination. There was also a claim
for unpaid wages, which appears now to have disappeared. There were also
complaints made in respect of public interest disclosure and subsequent
victimisation.
2.
The Respondent, East Sussex County Council, responded to the claim
denying them but also indicating that they were put in difficulties by the way
in which the claims were formulated and, in particular, were not in a position
to know, because of lack of particulars, whether or not they could claim that
certain claims were out of time and/or failed because a statutory grievance
procedure, then in operation, had not been complied with.
3.
A case management discussion took place on 15 May 2009. In
preparation for that, the Respondent produced a document entitled “Draft List
of Issues and Directions”. It included, in paragraphs 5-12, a series of
requests for further and better particulars, designed to elicit information
which would enable the Respondents, amongst other things, to identify whether
or not they should be making applications to strike out on the basis that
statutory requirements as to time and going through grievance procedures had
not been complied with.
4.
Employment Judge Davey, after a case management discussion, at which
Mrs McMichael was represented by a friend and the Respondents by Mr Massarella
of counsel, who has acted for them throughout, ordered that the further and better
particulars requested under paragraphs 5‑12 of the document of
14 May 2009 should be supplied on or before 19 June. Those further
and better particulars are, in my judgment, even to a lay person,
straightforward, logical and simply require the person to analyse the
complaints made in the ways identified.
5.
The Claimant, at that stage it would appear relatively untutored in the
ways of the Employment Tribunals, responded by producing a document entitled
“Further and Better Particulars” dated 16 June 2009. She attempted to
identify and describe and, to an extent, give dates for a series of complaints
she was making under various headings - “Work at Chington”, “Organisational
actions”, “Work at Whitbread” and “Work at Sandbanks”- which, taken together,
amounted to some thirty numbered complaints.
6.
On 17 June the Respondents responded to those further and better particulars
in a way which was to be replicated throughout the history of this matter and
which I accept was intended to be helpful to the Claimant as a
litigant-in-person and also, by the way, being helpful to the Respondent by
ensuring that the allegations being made were particularised in a way which
would enable them to consider how best to respond to them. In a pattern that
was to be repeated, that letter identified the ways in which it was said the
document that had been produced did not comply with, or respond sufficiently to,
the various further and better particulars requested and, insofar as I can judge,
were accurate in that assessment.
7.
On 22 June, the Respondent wrote to the Employment Tribunal drawing
attention to these deficiencies and, at that stage, seeking to strike out the
claims. On the same date, 22 June, the Claimant, or at least her husband,
sent an email to the Respondent which set out, in tabular form, the thirty
allegations numbered sequentially, attempting to identify the nature of the
complaint made in respect of each and, where there was more than one, which
ones, and identifying, in broad terms, which ET application they were to be
found in and identified where, or on what date, the various grievances were
raised. Suffice it to say that, by that relatively early stage, it seems that
the Claimant had become sufficiently tutored in the ways of Employment Tribunal
litigation that she recognised what it was that was being sought and she
herself adopted a tabular format in order to set out the material in as clear a
way as possible.
8.
On 26 June the Respondents wrote both to the Employment Tribunal
and to the Claimant. Once again, to the Claimant, they identified the ways in
which even the tabular format and its information did not comply with the further
and better particulars which had been ordered, and, to the Employment Tribunal,
maintained their position, seeking an extension of time to put in their ET3,
because they were embarrassed in being unable to do so by the lack of
particularity in the claims they were facing.
9.
On 28 July 2009, Employment Judge Twiss responded to the correspondence
to the effect that the particulars provided were inadequate and gave the
Claimant a further 14 days to provide the particulars required, in default of
which a judge would consider striking out her claim. In response to that
development, on 11 August, the Claimant by way of email from her husband to
the Employment Tribunal and to the Respondent, amongst other things,
acknowledged that she had received a different table from the Respondent in
which they had set out, under a number of headings, where certain information
might be slotted in. The headings were, “Allegation”, “Type of claim”, “Where
in ET1”, “Grievance”, whether or not it was a protected act or disclosure and
the relevant section of the statute. In that email she said as follows:
“I am of course willing to complete the areas which have been
specified, if the Tribunal thinks this is appropriate. I will do this to the
best of my ability, but given that I do not have a solicitor would ask for
seven days in which to complete it.”
10.
She did complete it and, it would appear, on the same day,
11 August, she sent a table containing the information that she was able
to provide at that point. That table covers some 13 pages. On the
following day, 12 August, the Respondent, having received that email,
again asserted that the particulars provided did not comply with some of the
paragraphs of the further and better particulars sought and set out, again in
my judgment helpfully, what further information was required. On the same date
they wrote to the Employment Tribunal and again asserted the shortcomings of
what the Claimant had done and indicated that they wished her case to be struck
out for non-compliance.
11.
On 12 October there was Notice given of a Pre-Hearing Review at
which would be considered a number of matters, including the question of a
strike out for non-compliance with the requests for further and better particulars.
In preparation for that hearing, the Respondent provided a version of the
table which the Claimant had provided, identifying and highlighting where the
deficiencies were in the information provided, so that at a single glance one
can see under which headings the information was required and the precise
nature of what was required to be done. Once again, given the Claimant’s
ability to identify what was required and to work within the formulation of the
further and better particulars, that was a helpful document.
12.
On 15 January 2010, before Employment Judge Simpson, a series of orders
were made, one of which reads as follows:
“UNLESS the Claimant provides to the Respondent by 12 March
2010 each and every particular requested in paragraphs 5-12 of the document
headed ‘Respondent’s draft list of issues and directions for CMD’, dated
14 May 2009 to be found at pages 73-78 of the bundle all claims contained
in the originating application presented by the Claimant on 12 September
2008 […] will be struck out.”
13.
On 19 January 2010 that order was sent to the parties along with
the reasons of the Employment Judge. He set out the history of the matter,
which I have already summarised, he refers to an authority, Blockbuster
Entertainment Ltd v James [2006] IRLR 630, and then, in
paragraph 11, stated that he was satisfied that the Claimant had not
complied with the particulars ordered by Judge Davey. Whilst he
acknowledged that it might require expenditure of a significant period of time
to provide the details ordered, he concluded that the Respondent was entitled
to know what case it has to meet in order properly to prepare its defence. He
concluded that the Claimant had not acted contumeliously, but the default arose
from the daunting prospect of having to apply herself to the detail demanded.
On that basis he concluded that it would be wrong, at that stage, to strike out
the claims. He pointed out that he had taken care to explain to the Claimant
and her representative that the order he was making was her last chance to
provide the information which should have been provided in June 2009, and
that if she failed to do so now her claim would be struck out.
14.
On 12 March 2010 the Claimant produced a document which runs to
some 39 pages and has various attachments. I will return to that document in
due course. Suffice it to say that, on the face of it, it is difficult to see
how, given the way in which the Claimant had responded in the past to the
request for further and better particulars, she could have thought that it
amounted to an attempt to satisfy the requirement that she provide the further
and better particulars which had been requested and ordered by Employment Judge
Davey.
15.
At any rate, that was the view to which the Respondent came and on
30 March they wrote to the Employment Tribunal claiming that, as the
Claimant had failed to comply with the unless order, the case should be struck
out from the date of compliance if that had not already happened and that this
should have occurred automatically on 12 March. They therefore asked for
confirmation in writing that that had occurred, given the automatic nature of
the strike out. They stated that they did not believe, for that reason, that
any formal application was required. They explained that they had spent what
they called “an inordinate amount of time” looking through the document
provided by the Claimant to try to extract any element of the further and better
particulars she had complied with.
16.
Notwithstanding the fact that that was not, they thought, a fair
expectation to place on a Respondent, they had completed that lengthy task.
They then identified, in respect of each of the paragraphs 6-11 contained in
the order for further and better particulars, the ways in which the document
failed to comply. In addition, they said the document purported to make new
complaints and seemed to also include evidence in the form of a point-by-point
account of a private meeting held by two of their employees, which they did not
believe had been inadvertently overheard as the Claimant (as it has turned out)
untruthfully asserted. Subsequently it has been accepted that the meeting was
recorded.
17.
They also provided a version of the table which identified further which
additional deficiencies they had identified in respect of the further and better
particulars. The Claimant responded to that letter by sending her submissions
to the Employment Tribunal under cover of a document dated 6 April. That
is an unfortunately worded document, because it really amounts to a statement
not so much that she had complied with the previous order as that she did not
accept that the use of the tabular format, or, it would seem, that the format
of the questions posed in the further and better particulars was a helpful way
of clarifying her complaint. She sought to defend what she acknowledged to be
an essentially chronological approach adopted in the document of 12 March
by claiming that it better assists the court to understand the complex and
hidden aspects of victimisation that the court is invited to infer did occur
and that it explained the case far more effectively than a sterile table.
18.
In addition, she sought permission to amend her claim to reflect and
include subsequent events; something which was foreshadowed by the document as
it contained a significant number of paragraphs relating to events which
post-dated the date of the ET1. She also sought an order that the Respondent’s
case should be struck out.
19.
As I have already indicated, on 20 April the Employment Tribunal
issued the order striking out the claim under the heading, “Judgment”. On 27 April,
by a document sent to the Employment Tribunal, the Claimant requested Reasons
for the Judgment of Employment Judge Simpson. She notified the Tribunal that a
detailed, formally argued, request for a review would follow. She also
included in that document the following, under paragraph 4a:
“a. The Unless Order required that her F&BPs provided
information so that the Respondent knew the case they had to answer. It
further stated that claimant must supply every single particular or she would
be struck out. This very formalistic approach requiring very detailed and
legalistic particularisation seems to defeat the objective of accessibility and
informality in the ET system. Is it that it was deemed that the very onerous
requirement that not every single particular was supplied, or that not a single
or part particulars sufficient to make a case was established?
b. Did the Judge rely on the Respondent’s purported assertions
that she could not, after many hours, make out what case was being submitted;
or did the Judge read the specific matters and items submitted that, on
independent examination provides the precise data request and forming the basis
of the case that needs to be orally examined?”
20.
Employment Judge Simpson produced his Reasons in a document dated
8 May 2010. He referred to the Reasons given by him on 15 January
for making the unless order, including the pre‑history of the matter
concerning the order made by Employment Judge Davey on 15 May and the
subsequent order of Employment Judge Twiss on 28 July. In
paragraph 6 of the Reasons he said as follows:
“I am satisfied the particulars ordered have not been provided
with the consequence that the ‘unless’ order is activated and the claims struck
out.”
21.
In paragraph 7 he then explained why it was his judgment that it
was in the interests of justice. He was satisfied that the Claimant and her
representative knew exactly what was required and the consequences of
non-compliance. He had recognised that the process might be time consuming,
which was why he had allowed two months for compliance. He then says as
follows in paragraph 8:
“I have considered the Claimant’s request dated 27 April
2010 seeking reasons for my judgment striking out her claims. Strictly
speaking these reasons are contained in the reasons attached to my judgment of
15 January when I ordered a strike out to take effect on 12 March
unless particulars were provided. If particulars were not delivered, as has in
fact happened, the strike out took effect without further consideration. There
would only have been fresh consideration if the Claimant purported to have
delivered particulars which the Respondent asserted were inadequate or there
was some other reasons asserted for non-compliance.”
22.
In paragraph 9 he went on to say that he was treating the
Claimant’s current request as a request for review under rule 34 of the Employment
Tribunals (Constitution and Rules of Procedure) Regulations 2004. He
indicated, on that basis, that he would refuse it on the ground that there was
no reasonable prospect of his order being varied or revoked. He was satisfied
that her failure to provide particulars as ordered was unreasonable conduct of
the proceedings as well as non‑compliance with an order.
23.
There was then a document dated 1 May 2010 from the Claimant to the
Employment Tribunal, which was a request for a review of the Judgment of
Employment Judge Simpson dated 20 April. Once more, that is a rather
unfortunate document because it takes the line that the unless order that was
made was unduly onerous and misdirected in law in requiring each and every
particular to be supplied; that they were very extensive, detailed and onerous
in a difficult and complex case of victimisation, and that to have provided all
the details in a very formulaic approach requiring very detailed and legalistic
particularisation seemed to defeat the object of accessibility and informality.
24.
Notwithstanding that, she claimed in paragraph 5 that examination
of the evidence quoted in her further and better particulars did provide the
information requested in the paragraphs in the further and better particulars.
At paragraph 5.1 she sought an oral hearing of her application for a review.
She also attached a document in tabular form dealing with the 113 allegations
which had been contained in a chronological account in the document of
12 March and purporting, in respect of each of those, to identify the
applicable legislation, where in the ET1 each was to be found, where in the further
and better particulars each was mentioned and a residual column headed
“Notes”. Also, in a separate table but attached to the same document, the same
kind of information was set out, but, in addition, giving detail of the subject
and relevant content. That tabular document runs for some 11 pages.
25.
In the bundle before this Tribunal there is a Post Office receipt dated
1 May, said to be in respect of that particular document, but the
Employment Tribunal in June 2011, in two separate communications, has indicted
that no trace can be found of that document on that Tribunal file.
26.
To complete this part of the narrative, on 14 May there was a
second request for a review, which put the matter on a statutory footing.
There was an appeal launched against the Employment Tribunal’s decisions
striking out the claim and, inferentially, refusing the review.
27.
The appeal was initially dismissed on a paper sift by HHJ Ansell on
7 September 2010. The matter came before HHJ Peter Clark for an oral
consideration under rule 3(10) on 18 February 2011. On that occasion
the learned Judge ordered that the appeal proceed to a full hearing, but, on
the basis of an amended Notice of Appeal which pleaded four grounds. The first
ground was that the Employment Judge proceeded on the misunderstanding that the
Appellant had failed to deliver the particulars in accordance with the unless order
by 12 March 2010. Essentially that was relying on certain passages in the
Reasons for the decision which, the Appellant suggested, could only make sense
if the Employment Judge had not realised that a document dated 12 March
had ever been delivered to the Tribunal.
28.
The second ground was that the Employment Judge proceeded to strike out
the claim and, subsequently, summarily dismissed the application for review on
the misunderstanding that the Claimant was not purporting to have complied with
the unless order and did so without reference to the Appellant’s objection to
the strike out, dated 6 April 2010, and her application for review dated
1 May 2010 respectively. That seems to be a ground not so much that the
Judge did not realise that a document had been delivered, but that he misconstrued
completely the effect of the document dated 12 March.
29.
The third ground was that the Employment Judge had erred in failing to
conduct a review hearing where the Appellant was raising substantial points
relating to her compliance with the unless order and relying on guidance given
in the case of Thind v Salvesen Logistics Ltd
UKEAT/0487/09/DA. Fourthly, the Employment Judge failed, or failed adequately,
to give any, or any proper, weight to various factors in exercising his
discretion to dismiss the review, setting out a series of matters which broadly
mirror rule 3(9) of the Civil Procedure Rules.
30.
Arising from the request for a second review (which suggested that the
Claimant was entitled to a review because there had been an administrative
error that seems to have resulted in her documents, delivered on 12 March,
not being placed before the Employment Judge) on 29 June 2010 the
Employment Tribunal, through the Secretary, wrote to the parties. It recorded
that the request for the second review had been considered by Employment Judge
Simpson who refused it on the basis that her claims had been struck out and
there was no jurisdiction to consider a further review. The letter goes on to
say as follows:
“For the avoidance of doubt when considering the matter on
20 April 2010 Employment Judge Simpson had before him the letter from the
Respondent dated 30 March 2010 and a copy of the document delivered by the
Claimant to the Respondent on 12 March 2010.”
31.
It is of significance that that passage, in that letter, is not from
Employment Judge Simpson; it is from the Secretary of Employment Tribunals and
it does not claim, on behalf of Employment Judge Simpson, that he had looked at
either of these documents. All it says is that he had those documents before
him.
32.
Before turning to the merits of the appeal, there is a jurisdictional
issue with which I have to deal. The Respondent argues that, because the unless
order, if not complied with, results in an automatic strike out, there is,
accordingly, no Judgment to which an application to review can attach. In
order to investigate this contention I must look in some detail at the
procedure rules. Rule 10 sets out the Tribunal’s general power to manage proceedings,
which includes, at sub-paragraph 2(b), as an example of an order which may
be made, an order that a party provide additional information. Sub-rule 1(n)
also envisages the Tribunal having the power to make an order “varying or
revoking other orders”.
33.
Rule 13 concerns compliance with orders and practice directions. Rule
13(2) provides as follows:
“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.”
34.
It is said that, arising out of those provisions, as indeed was
envisaged in the correspondence, if there is non-compliance with the unless order
then a strike out comes about automatically. There is no need for either party
to apply for the pleading or the claim to be struck out; if the Judge is
satisfied that there is non-compliance then that follows automatically. I then
have to consider the powers given to the Tribunal to carry out reviews. Rule
34 provides for reviews of “other judgments and decisions”. Sub-paragraph (1)
provides that:
“Parties may apply to have certain judgments and decisions made
by a Tribunal or [an Employment Judge] reviewed under rules 34 to 36. Those
judgments and decisions are —
a) a decision not to accept a claim,
response or counter-claim;
b) a judgment (other than a default
judgment but including an order for costs, expenses, preparation, time or
wasted costs); and
(c) a decision made under rule 6(3)
of Schedule 4;
and references to ‘decision’ in rules 34 to 37 are references to
the above judgments and decisions only. Other decisions or orders may not be
reviewed under these rules.”
35.
Rule 35 provides for preliminary consideration of an application for
review. Sub-rule (3) provides:
“The application to have a decision reviewed shall be considered
(without the need to hold a Hearing) by the [Employment Judge] of the tribunal
which made the decision […] and that person shall refuse the application if he
considers there are no grounds for the decision to be reviewed under rule 34(3)
or there is no reasonable prospect of the decision being varied or revoked.”
36.
To revert to rule 34(3), that sets out the bases upon which a decision
may be reviewed, which includes “(e) the interests of justice require such a
review”. Rule 36 concerns:
“When a party has applied for a review and the application has
not been refused after preliminary consideration [under rule 35, in such a
case] the decision shall be reviewed by [the Employment Judge] or tribunal who
made the original decision [if practicable].”
37.
Sub-rule (3) of rule 36 provides that:
“A tribunal or [Employment Judge] who reviews a decision under
paragraph (1) or (2) may confirm, vary or revoke the decision.”
38.
The procedure which is relevant where there has been a strike out
pursuant to non-compliance with an unless order has been considered in this
Tribunal, specifically in two cases. In the case of Uyanwa‑Odu & anor v Schools Offices Services & anor
UKEAT/0294/05/ZT in October 2005 the Employment Appeal Tribunal, presided over
by HHJ Clark, had to consider the powers of a Tribunal to vary or review a
judgment that a claim be struck out where it had been struck out for failure to
comply with an unless order which had been made some days previously. In the
Judgment of the EAT, paragraph 23, they summarised submissions which they
subsequently accepted to the following effect:
“If the party against whom the order to do something fails to
comply within the time permitted then the conditional Rule 13(2) order takes
effect. The proceedings are finally determined. That is, he submits, a
judgment.”
39.
In paragraph 25 they say,
“In our view a Rule 13(2) unless order amounts to a conditional
judgment. It becomes a final determination of the proceedings if the party
fails to comply with the underlying order.
26. Consequently, it is reviewable under Rule 34. The
Employment Tribunal is not functus. It has power to review a strike out
order taking effect under Rule 13(2) in the same way as strike out orders made
under Rule 18(7) or Rule 20(4).”
40.
In paragraph 28 they say as follows:
“…our final analysis is this: following expiry of the time for
compliance the strike out sanction takes effect. Thereafter it is open to the
party in default to apply for a review of the strike out judgment, coupled with
an application to extend time for compliance with the underlying order
requiring him to do or not to do something.”
41.
In that case also they had to consider, though without necessarily
deciding, the decision of the Tribunal that once it had made an unless order
then the Tribunal was functus officio; that is to say it had no further
part to play. In paragraph 31, saying that that raised an interesting point,
the EAT then posited the following question and answer:
“How then is an issue as to whether or not a party has complied
with an unless order made under Rule 13(2) to be resolved? It can only be, we think,
at a subsequent Tribunal hearing.”
42.
The correctness, or otherwise, of that conclusion of the EAT was further
considered by the EAT before HHJ Clark sitting alone in the case of Neary
v The Governing Body of St Albans Girls’ School & anor [2010] IRLR 124. The matter came before him and was considered by him in respect of a review
order. Having rehearsed the familiar territory of rule 13(2) and having
referred to his own decision in Uyanwa he said in paragraph 21
that:
“Having reconsidered the point I see no reason to depart from my
approach in Uyanwa‑Odu. An unless order […] is an order within
the meaning of Rule 28(1)(b) which is not capable of review by virtue of Rule
34(1). However, once the sanction strike out automatically takes effect following
non-compliance that is a final determination of the proceedings under Rule
28(1)(a) allowing of a review application under rule 34 to 36.
22. I derive some support for that view from the judgment of
Elias P in EB v BA (UKEAT/0139 and 0138/08/DM, 4 July 2008).”
43.
In that particular case Elias J (President) (as he then was) was
considering an appeal where, as part of the background, there had been an unless
order and the question of whether or not there had been a breach of it was in
dispute. In that case the Employment Judge held a hearing to determine whether
or not there had been compliance with the unless order. In paragraph 20
of his Judgment, Elias J described how the claimant had submitted before
the Employment Judge that there was no failure to comply with the order, but
that the Employment Judge had rejected that submission.
44.
As part of the narrative Elias J also noted that there had been a
further hearing on 25 October 2007 in which the claimant sought to have
the strike out reviewed. The Employment Judge considered that the case should
be reviewed and Elias J records that there was no appeal against that
decision. That was a case in which both sides were legally represented
respectively by Mr Richard Leiper for the appellant and
Mr Christopher Jeans QC for the respondent. Not only was there no appeal
against that decision but Elias J did not comment adversely on what had
occurred before the Employment Tribunal or on the decision of HHJ Clark in
Uyanwa, which had informed what had happened in the Employment
Tribunal.
45.
On the other hand, it is pointed out by the Respondent that in the Court
of Appeal consideration of the case of Neary, once again,
although it was not the subject of an appeal, Smith LJ at paragraph 5
had commented that HHJ Clark had held first that the remedy of review was
available to the claimant whose claim had been struck out automatically for
failure to comply with an order of the Tribunal. She commented, “that decision
is not wholly free from difficulty but it is not challenged in this court and I
shall say no more about it”.
46.
She also had said at paragraph 19 that in that particular case the
Employment Judge had considered the question of non-compliance with the unless order
and she says this:
“Instead of merely confirming that the claim had been
automatically struck out, he purported to make an order striking it out. That
was an error and was of no effect. However, the claim had already been struck
out automatically.”
47.
That was a case in which the party who was the subject of the unless order
had acknowledged that he had not complied with the unless order. It is to be
observed that in the decision of EB v BA Elias J had had
cited to him an authority in respect of the Civil Procedure Rules, and in
particular the Court of Appeal in Marcan Shipping (London) Ltd v Kefalas & anor
[2007] 1 WLR 1864, in which Moore‑Bick LJ, dealing with a failure to
comply with an unless order, pointed out that the sanction prescribed by the order
takes effect automatically as a result of the failure to comply with its terms,
but that the CPR provide for a party in default to apply for relief under rule
3(9). Indeed, it was whether or not the categories identified for
consideration by the court under the relief provisions in the CPR applied to Employment
Tribunals which was the nub of the decision in the Neary case in
the Court of Appeal. The Court of Appeal decided that they did not, but that
was essentially because Parliament, not having identified in the Employment
Tribunal rules the particular factors to be borne in mind which appeared in the
CPR, must have been thought to have done so deliberately, because:
“It has always been the intention of Parliament that employment
tribunal proceedings should be as short, simple and informal as possible […] But
where Parliament has apparently decided not to incorporate into employment
tribunal practice a set of requirements such as those in CPR 3.9, I do not
think it proper for the courts to incorporate them by judicial decision. It is
one thing to say that ETs should apply the same general principles as are
applied in the civil courts and quite another to say they are obliged to follow
the letter of the CPR in all respects. It is one thing to say that ETs might
find a list of CPR 3.9(1) factors useful as a checklist and quite another to
say that each factor must be explicitly considered in the employment judge’s reasons…”
48.
In my judgment the analysis of HHJ Clark of the Tribunal procedure rules
is correct and, in deciding in the same way as he did, I am comforted by the
fact that in the case of EB v BA the then President rehearsed
the sequence of events which had occurred, consistent with HHJ Clark’s
view, without any adverse criticism. Furthermore, from paragraph 47 of
the case of Neary it seems apparent that the Court of Appeal was
by no means ruling out the availability to the Employment Judge of, in some way
or another, providing relief for a breach of an unless order, the most
appropriate method being by way of review.
49.
In terms of the rules themselves, in my judgment it is right for the order
striking out a claim for breach of an unless order to be characterised as a
judgment, because it is a final determination of the proceedings or a
particular issue in those proceedings. It was rightly so described in the order
which was made.
50.
The question whether or not there has been compliance with an unless order
ultimately, if in dispute, has to be the subject of a judicial decision taken
by the Employment Judge; preferably the one who imposed the unless order. In
my judgment, before he comes to that view, if the parties choose to make
representations, as they did here, he is obliged to have regard to them but he
is by no means necessarily obliged to hold a hearing. Once he has concluded
that there was non-compliance with the unless order then, of course, a strike
out would follow without any application being required to be made. But, as
that would give rise to a Judgment, it must then be open to an application for
review under rule 34 if the interests of justice require such a review. If the
Employment Judge were of the view that such a review was required then an order
may be made, confirming, varying, or revoking the decision, in this case, the
decision that there was non-compliance and that there was a strike out. Such a
variation might, for example, include, as HHJ Clark indicated was
possible, an order that the claim be struck out upon a certain future date
unless certain things happened on or before that date; that is simply by way of
an example.
51.
In my judgment the difficulty which the sequence of decisions in this
case throws up is that, on any fair and proper reading of the Reasons given by
Employment Judge Simpson, and in particular paragraph 8, it is obvious
that he had no regard at all to the content of the document of 12 March,
nor does he seem to have had any regard to the content of the letter of the
Respondent’s of 30 March, let alone the letter of the Claimant in response
dated 6 April. Paragraph 8 can only make sense on the basis that the
Employment Judge was under the misapprehension that no document had been
delivered purporting to comply with the provision of the further and better particulars,
and that there was nothing before him by which the Respondent was asserting
that that document was inadequate. If he had been aware of, or had any regard
to, either of the documents to which I have referred, then plainly and
obviously he would have referred to them, but he did not. On the contrary, he
suggested that particulars had not been delivered and that therefore the strike
out took effect without further consideration.
52.
Anticipating that he might have adopted the kind of procedure which took
place in EB v BA, and which was described without
criticism by Elias J, he specifically said that there would have been
fresh consideration if the Claimant purported to have delivered particulars
which the Respondent asserted were inadequate. Plainly that did not happen as
far as the Employment Judge was aware. It seems to me the fact that the
documents may have been on the file, as recorded by the Tribunal in their
letter of 29 June 2010, does not in any way contradict or gainsay what is
obvious from paragraph 8 of the decision; namely that the Employment Judge
was unaware that a document had been delivered on 12 March and/or that
objection was taken to it as comprising compliance by the Respondent’s letter
of 30 March.
53.
Accordingly, it follows that the decision of Employment Judge Simpson is
fundamentally flawed. That, however, is not an end of the matter because I
have had the advantage of seeing the document of 12 March and being
addressed at some length upon it. It is to be viewed in its context and, in
particular, the context of the previous attempts by the Appellant to comply
with the request for further and better particulars and the guidance which had
been offered by the Respondent. In my judgment, and despite Mr Dhar’s
efforts to the contrary, it is futile to suggest that this 39 page document,
which comprises, to a large degree, a series of chronological complaints, set
out without any reference to the types of proceedings to which they are
relevant or the relevant documentation or the particulars requested and which,
in addition, contains extra complaints, is compliant with the unless order.
54.
It seems to me to flow necessarily from an examination of this document
that there was non‑compliance with the order and, accordingly, a strike
out automatically flowed. However, as I have already decided, a decision to
strike out, operating as it does as a judgment, albeit one which follows
automatically from the breach of the unless order, is a decision which can
trigger a review, and there is no doubt that the Claimant sought a review. She
sought a review which was foreshadowed in her letter of 27 April and she
sent a review request on 1 May, albeit it never reached the Employment
Tribunal. It is clear that Employment Judge Simpson treated the letter of
27 April as an application for review. Given that he did not realise that
any document had been delivered to the Tribunal, let alone what it contained,
it is hardly surprising that he summarily dismissed the application for a
review. But, insofar as he was under the same misunderstanding in respect of
that as he was in respect of his consideration of non-compliance with the unless
order, that decision too is fundamentally flawed.
55.
I, therefore, have to consider whether or not I should substitute my
judgment on that matter and refuse the review. In that regard I have to have
consideration for what this Tribunal has said in the case of Thind v Salvesen Logistics Ltd
where Underhill J (President) in January 2010 said at paragraph 26:
“I can understand the temptation for Employment Judges to deal
summarily with applications for reviews of strike-outs pursuant to the
operation of an unless order. No doubt such applications are quite commonly
received and are quite commonly wholly unmeritorious; but it needs to be borne
in mind rule 35(3) is concerned only with a preliminary consideration of an application
and that if substantial points are raised then a review hearing will be
necessary.”
56.
To some extent he counterbalanced that comment in paragraph 36 where he
says this:
“I certainly would not wish it to be thought that it will be
usual for relief to be granted from the effect of an unless order. Provided
that the order itself has been appropriately made there is an important
interest in employment tribunals enforcing compliance, and it may well be just
in such a case for a claim to be struck out even thought a fair trial would
remain possible.”
Conclusion
57.
This is, in many ways, a problematic case. There is no doubt that this
Claimant has many grievances which she has rehearsed at substantial length and
in considerable detail in the various documents to which I have referred. It
is also the case that she is to some extent by now tutored in the ways of the
Employment Tribunal and she is well capable, as she has shown, of responding
sensibly to a request for further and better particulars such as she was in
receipt of in this case.
58.
For my part I have little doubt that the document of 12 March is
difficult to see as a sensible and bona fide attempt to respond to that
request; rather it reads to me as an explosion of frustration. She makes a
series of points about formality, about the particular format and about how
best a Claimant may express the complaints that she has in a way which best
assists the Tribunal, otherwise than complying with what she may perceive as an
overly exacting and overly restraining formulation.
59.
This is a case where there are substantial issues raised by the
Claimant. On the other hand the Respondent does have a legitimate interest in
knowing whether or not they can plead certain lines of defence and, without the
information they seek, they are hamstrung and to that extent suffer significant
prejudice. But one has to remember all the time that a strike out is a draconian
sanction and that the appropriate forum for determining whether or not it is in
the interests of justice for a review to be granted so as to give extra time,
or whatever it may be, that the Appellant seeks or may seek, is the Employment
Tribunal itself, and not this Appellate body, even though I have been exposed
substantially to the documentation and to argument.
60.
For example, one matter which has not been at all canvassed in argument
before me is whether, albeit it very late in the day and with the assistance of
counsel, a document has now been produced, some 15 months late, which does
comply with the request for further and better particulars, and what, if any,
effect that should have upon the continuation, or not, of this litigation.
61.
The outcome, therefore, is that the decision of Employment Judge Simpson
on the strike out cannot stand. But, I substitute my decision for his; namely I
have decided that there was non-compliance with the further and better particulars
ordered and, therefore, the claim does stand struck out. However, the appeal
against the refusal by Employment Judge Simpson to grant a review of that
judgment is also fundamentally flawed. I quash that decision and I remit the
argument on review to a different Employment Judge for him or her to determine.
62.
I am acutely aware that the Respondent has attended and argued this
appeal and that I have decided that the order requiring the further and better
particulars has not been complied with and that the action be struck out. I
have indicated my view of the lack of merits of the letter of 12 March,
albeit the question of a review of that strike out is to be determined by a
different Employment Judge. In my judgment it should be open to the Respondents
to make an application for their costs in respect of the review which is to be
held by an Employment Judge, regardless of whether, upon review, the strike out
stands or is overturned. Obviously the outcome of any such application for
costs would be a matter for the Employment Judge on the day.
