THE
HONOURABLE LADY SMITH
Introduction
1.
This is an employer’s appeal from a judgment of the Employment Tribunal
sitting at Aberdeen, Employment Judge Mr N M Hosie, in which he stated a
refusal to strike out a claim at a Pre Hearing Review. The judgment was
registered on 23 April 2012.
2.
For convenience, I will continue to refer to parties as Claimant and Respondent.
3.
The Claimant was represented by Mr D Jaap, solicitor before the Tribunal
and by Mr Bradley, advocate, before me. The Respondent was represented by
Mr A Brown, solicitor before the Tribunal and before me.
Background
4.
The Claimant used to be employed by the Respondent. It provides
ambulance services in Scotland. He presented a form ET1 to the Tribunal on
17 November 2009 in which he claimed that he was owed “other payments”
(see part d of part 5.1 of the ET1). In part 5.2, he stated:
“2. Withdrawn an allowance without consultation and in breach of
my contract and the Agenda for Change
3. Refused to pay this allowance which has led to me suffering
ongoing deduction as colleagues (Ambulance Staff) as opposed to Patient
Transfer Staff, still receive the payment.
In a letter dated 16th Dec we were told to take a
30min unpaid meal break. Due to the Control of Infection Policy we are not
able to carry prepared food so have no choice other than to buy food on
location. Initially this was not a problem as the service paid subsistence for
meals taken at Raigmore hospital. However, in late 2006, this payment was
suspended while management sought a clearer understanding of the definition of
‘away from base over (5) hours meant, as outlined in the Agenda for Change
Policy Guidelines. In Jan 2007 unpaid subsistence sheets were returned to me
and I submitted a grievance which was acknowledged on the 19th
February 2007.”
5.
Following a Case Management Discussion in September 2011, the Employment
Judge issued an order for additional information dated 27 September 2011 which was in the following terms:
“ ORDER FOR ADDITIONAL INFORMATION
1. The dates on which the claimant claims there was an
entitlement to subsistence allowance which has not been paid.
2. How much he claims is due for each day.
3. With specific reference to his contract and the appropriate
policies, the basis on which he claims that the subsistence allowance is due
for each of those days.”
6.
Information was provided in response to parts 1 and 2 of the order of 27 September 2011 but not in response to part 3. The information provided in
relation to parts 1 and 2 included a claim form which the Claimant had
completed, dated 30 November 2007 in which he had declared that “the charges made are in accordance with the current Agenda for Change regulations in
force.” By email dated 14 October, the Respondent’s solicitor intimated an
application for an “Unless Order” for the Claimant to provide the information
specified in part 3 within 7 days. That application was made to the Tribunal
and intimated to the Claimant’s solicitor. The Tribunal was evidently
satisfied that it was appropriate to issue the order sought since Employment
Judge Hosie issued an order dated 1 November 2011 in the following terms:
“ORDER TO PROVIDE ADDITIONAL INFORMATION
Employment Tribunal Rules of Procedure 2004
In accordance with the power set out in Rule 10 of the
Employment Tribunal Rules of procedure 2004 an Employment Judge ORDERS that: -
On or before 8 November 2011 you provide the secretary of
the Tribunal at the address shown in the enclosed letter and Anderson Strathern
LLP, 1 Rutland Court, Edinburgh, EH3 8EY with the additional information set
out in the attached schedule.
Unless this order is complied with the claim shall be struck out
on the date of non compliance without further consideration of the proceedings
and without any further warning or hearing taking place.
…………………
Schedule
With specific reference to his contract and the appropriate
policies, the basis on which the claimant claims that the subsistence allowance
is due for each of those days.”
7.
Thus, the content of that order was a direct reflection of part 3
of the earlier order of 27 September but subject to the warning that
failure to produce that information within the stated timescale would result in
the claim being struck out automatically.
8.
The Claimant’s solicitor responded to that order by email dated
7 November 2011. The content of the response was:
“We refer to your letter of 1 November 2011.
In relation to the further information requested we can advise
that Mr Laing’s claim is founded upon the implied terms and conditions
during his period of employment with the Respondent. It is advised that Mr Laing
has never had sight of any written terms and conditions, however it is
maintained that these terms were held to be implied due to habit and
circumstance.”
9.
The Respondent did not accept that that letter constituted compliance
with the “Unless Order”. By email dated 9 November 2011, the Respondent’s
solicitor wrote to the Employment Tribunal requesting confirmation that the
claim had been struck out given the lack of information supplied by the Claimant
in the email of 1 November.
10.
The Claimant’s representative was asked for comments in relation to the Respondent’s
solicitor’s email of 9 November. Then, between 15 and 17 November
2011, email correspondence occurred between parties and the Tribunal on the
issue of whether or not the order had been complied with.
11.
The Employment Judge held a Case Management Discussion on 9 December 2011 at which he allowed representations to be made by both parties. He
then issued a letter dated 12 December 2011 indicating that he was
inclined to the view that the “Unless Order” had been complied with and his
preliminary view was that the case should proceed to a full hearing. However,
he also invited comments from parties. Email correspondence again ensued. The
upshot was that the Tribunal then fixed a PHR. The Tribunal indicated that the
purpose of the PHR would be to consider “whether the claim should be struck
out”. The Respondent’s solicitor responded to that by email dated
23 January 2012 stating that it was the Respondent’s position that, as a
matter of law, the claim had already been struck out, that having happened
automatically on 8 November 2011. He was advised, by email of 24 January 2012, that the terms of that email had been noted by the Employment Judge.
The Letter of 15 November 2011
12.
By letter dated 15 November 2011 to the Respondent’s solicitor, the
Claimant’s solicitor sought to provide a further response to the “Unless
Order”. In particular, he advised:
“1. It is submitted that the original wording was perhaps not
reflective of the situation. It is submitted that the terms are express
terms of the contract. These terms were expressed to the Claimant verbally on
a number of occasions. Due to the informal nature of these expressions, the
Claimant does not have specific dates or times to refer to. However, the
Claimant asserts that this was a continuing course of action.
2. The habit and circumstance to which the Claimant refers is
the Claimant has previously received subsistence pay which was paid for the
type of periods that he is now claiming. This pay had been received on
numerous occasions which can be documented should this be required.
3. In relation to each of the days in question, the terms were
that if the Claimant was outwith his working station for a period of five hours
over a mealtime period that any monies spent during this period would be
reimbursed via subsistence pay.”
Pre-Hearing Review
13.
A PHR took place on 28 February 2012. Despite the clearly reiterated
position of the Respondent’s solicitor, it was said to be for the purpose of
considering whether or not the Claimant’s claim should be struck out.
14.
The Tribunal issued a judgment stating that “the application for strike
out of the claim is refused”. The Employment Judge’s reasons for doing so
appear to have been as follows:
·
Rule 13(2) of the Schedule 1 to the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004 (“the Employment
Tribunal Rules”) gives an Employment Judge the power to issue an “Unless Order”
providing that if it is not complied with it will automatically be struck out
on the date of non compliance;
·
The issue for him was whether or not the “Unless Order” had been
complied with;
·
He had a discretion in the matter;
·
Compliance with an order which had as a deadline 8 November
2011 could not be achieved by the provision of information in a letter of
15 November 2011;
·
It was relevant to consider whether or not the Claimant had
provided “fair notice” of his case
and that involved having regard not only to the actual response to the “Unless
Order” but also to “what had gone before” namely “what had already been
produced by the Claimant’s solicitor by way of additional information and
documentation either voluntarily or in response to other Orders”
but, other than appearing to refer to what had been produced by the Claimant’s
solicitor prior to the issuing of the “Unless Order”, he does not explain what
information and documentation he had in mind;
·
The distinction between pleadings and evidence had become
blurred; as the Claimant’s solicitor had submitted, the claim was relatively
straightforward. That was a reference to his having stated that the Claimant
would say in evidence that “I submitted these Expenses Claim Forms. They were
paid. I submitted others. They were not.” and that it was all a matter of
custom and practice against a background of the Agenda for Change;
·
He required to be mindful of what he referred to as the
“guidance” in the case of Mustafa v Guys and St Thomas’ NHS Foundation
Trust UKEAT/0516/11 which was that strike out was a power that ought
not readily to be exercised and that an “Unless Order” would not be breached
unless the response fell significantly short of what was required;
and
·
He required to bear in mind the overriding objective which
required him to decide cases justly and proportionately and strike out would
not be proportionate.
Relevant Law
15.
The power to issue an “Unless Order” was new to Employment Tribunals
when first introduced in the Employment Tribunal Rules 2004 (see:
rule 13(2)). It is not to be confused with the strike out powers that are
conferred by rule 18(7) where notice has to be given under rule 19
and the tribunal has a discretion whether or not to order strike out. In the
case of the “Unless Order”, the tribunal has no discretion – notice has been
given in the order itself and if the order is not complied with then the claim
or response is struck out as at the date of non- compliance without any further
procedure being required or indeed provided for under the Employment Tribunal
Rules. The recipient of an “Unless Order” should be under no illusions – his
claim or response will be struck out without further ado if he does not do as
the tribunal directs him. Further, partial compliance will not do: see e.g. Royal
Bank of Scotland v Abraham UKEAT/0305/09/DM. If there is a failure to
comply whether wholly or partially, the tribunal cannot revisit its decision
that failure to comply will result in automatic strike out.
16.
In the case of Uyanwa-Odu v Schools Offices Services Ltd
UKEAT/0294/05 HHJ Peter Clark said:
“25. 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.”
17.
I agree with that analysis (which was applied again by HHJ Peter Clark
in the case of Neary v The Governing Body of St Albans Girls School and
anr UKEAT/0281/08) and note that it accords with the analysis of
the Court of Appeal in relation to the very similar power provided for under
the CPR that was set out in the case of Marcan Shipping (London)
Ltd v Kefalas and another [2007] 1WLR 1864 where, as Moore-Bick
LJ said:
“28…….rule 3.8(1) expressly provides that where a party has
failed to comply with an order any sanction imposed by the order has effect
unless the party in default applies for and obtains relief from the sanction.
This makes it clear, in my view, that no further order is required to render
the sanction effective; on the contrary the onus is on the defaulting party to
take steps to obtain relief …
…
29…….the operation of the sanction does not lie in the
discretion of the court; only if there is an application under rule 3.8 is
the court required to consider whether, in all the circumstances, it is just to
make an order granting relief from the consequences that would otherwise follow
…
………
34 ….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.”
18.
The Court of Appeal thus determined that it was not appropriate for it
to hear argument about whether or not strike out was an appropriate response to
the failure to comply with an “Unless Order” because that was the consequence for
which the order itself had provided. In particular, it was not an opportunity
for the defaulting party to make a back door application for relief.
19.
That approach was referred to with approval in an appeal from this Tribunal
before the Court of Appeal in the case of Chikwudebelu v Chub
Security Personnel Ltd [2008] EWCA Civ 327 where, at paragraph
38, Pill LJ said:
“An unless order takes effect it is not complied with. It does
not require a further order addressed to the party against whom the order was
made.”
and observed that where HHJ Reid had, in his order, confirmed
that the claim was struck out he was doing no more than that i.e. providing
confirmation of something which had happened automatically.
20.
It is open to a tribunal to review the granting of an “Unless Order”
itself under rule 34 of the Employment Tribunal Rules – as observed by HHJ
Peter Clark in Uyanwa-Odu - but no such application was made in
this case.
21.
The granting of an “Unless Order” being a decision of an employment
tribunal, it is also appealable to this Tribunal on a point of law: Employment
Tribunals Act 1996 s.21. No such appeal was presented in this case.
22.
I should also refer to QPS Consultants Ltd v Kruger [199]
BLR 366 and Mustafa since both were relied on by
the Employment Judge and by the Claimant in the appeal. QPS was
not an employment litigation. It concerned a claim by engineers who sued, in
the Technology and Construction Court, for fees. It was pre CPR. Whilst
orders for further and better particulars could be issued in “Unless” form, the
case pre-dates the modern case management culture, an aspect of which is to use
tools of compulsion which ‘bite’ effectively. It is against that background
that the judgments of the Court of Appeal must, it seems to me, be read. I was
referred to page 371, where Simon Brown LJ said:
“First, an order for further and better particulars (whether or
not in Unless form) is not to be regarded as breached merely because one or
more of the replies is insufficient. If the answers could reasonably have been
thought complete and sufficient, then the correct view is that they require
only expansion or elucidation for which a further order for particulars should
be sought and made.
Secondly, although I would regard an Unless order as breached
whenever a reply is plainly incomplete or insufficient, I would not expect the
court’s strike out discretion to be invoked, let alone exercised unless the
further and better particulars considered as a whole can be regarded as falling
significantly short of what was required.”
23.
The procedure that Simon Brown LJ had in mind appears to be different
from that which applies to “Unless Orders” issued under rule 13(2) of the
Employment Tribunal Rules; he plainly has in mind the question of whether or
not to strike out remaining open after the deadline for compliance has passed
but that is not the case under rule 13(2) where all that remains at that
point is to assess whether or not there has been compliance.
24.
I can deal with Mustafa briefly. It is not in point. The
above passage from QPS was relied on by Wilkie J in this Tribunal.
However, the issue for him was, principally, whether or not the tribunal had
erred in law in its refusal to grant a review in relation to the strike out of
the claimant’s claim for discrimination. As he observes at paragraph 34, the
case before him was about “a granting of relief where by virtue of non
compliance with an unless order claims had been automatically struck out.”
Whilst there are indications of the claimant also seeking to argue that there
had in fact been compliance, the discussion in the judgment centres on the
considerations that would be relevant when considering whether or not to grant
an application for review following automatic strike out having occurred after
non-compliance with a rule 13(2) order.
25.
When the terms of rule 13(2) are considered in conjunction with the
authorities as discussed above, the following seems clear. First, on the first
day after the deadline for compliance, an Employment Judge requires to
determine, in chambers, whether or not the tribunal’s “Unless Order” has been
complied with. If it has then further procedure can be fixed. If the decision
is that it has not, then no further steps should be taken in the case if the
failure is by the claimant; if the failure is the respondent’s then further
procedure can be fixed but on the basis that the respondent is thereafter
debarred from participating. In the event that the tribunal decides that there
has not been compliance, there is no need to issue any order although I cannot
see that it would necessarily be wrong to issue an order confirming the
judgment that the claim/response was struck out for non compliance with the
“Unless Order” on the day after the deadline for compliance.
26.
It also seems clear that once the date for compliance with an “Unless
Order” is passed, the onus is on the parties to communicate with the tribunal
if they wish confirmation of their position, as the Respondent’s solicitor did
in this case. That ought not, however, be treated by the tribunal as an
opportunity to revisit the question of whether or not the “Unless Order” should
have been issued.
The Appeal
27.
In a clear and well structured submission, Mr Brown addressed me in
support of his grounds of appeal. He had two principal submissions: the Tribunal
had erred in concluding that there had been compliance with the order of
1 November 2011 and erred in approaching matters on the basis that there
was a discretion available which there was not. He referred to the above authorities,
particularly to demonstrate that strike out was automatic once there was non-compliance
with an order, operating as a conditional judgment which became unconditional
on the expiry of the deadline without compliance, and that the relevant judge
had no discretion in the matter.
28.
Regarding the issue of compliance, the Tribunal had erred in considering
that the response must fall significantly short of what was required. In so
deciding, the Tribunal had relied on Mustafa - which, in turn,
relied on the case of QPS - but the former concerned an
application for review, not the issue of whether or not strike out had occurred
and there had been reliance in Mustafa on the case of QPS
whereas the later authorities demonstrated that it did not set out the modern
approach that was appropriate in employment cases. The correct approach was
that which had been approved in Marcan.
29.
The Tribunal had also erred in considering that the underlying issue was
one of fair notice. It was not. The only issue was whether or not there had
been compliance. There was no question of the Tribunal having explained how
“what had gone before” satisfied the order of 1 November. In any event,
information provided prior to 1 November was of no relevance. A claimant
could not rely on what had gone before to support his case that he had complied
with such an order. The only document in the appeal bundle – an expenses claim
form – did not, in any event, come anywhere near to complying with the order.
30.
Mr Brown turned to the Tribunal’s comments about the matter at
issue being one for evidence. That was on the basis of an indication given by
the Claimant’s solicitor at the hearing but it was not open to the Tribunal to
consider anything other than the response of 8 November. The Tribunal
ought to have concentrated on it and could only, had they done so, have
concluded that the order of 1 November had not been complied with. It was
vague and wholly unspecific. It did not begin to set out the basis for the
claim which was entirely unclear. Further, the letter of 15 November
illustrated that it did not in fact set out what was the Claimant’s position
namely that he was founding not on an implied term but on an express one. The
letter of 15 November did not go to compliance but it could be looked at
when asking whether or not there had been compliance since it showed that his
position was that he accepted that he had not complied with the order in the
response of 8 November.
31.
He submitted that the response to the order of 1 November required
to (i) articulate the term relied upon, (ii) narrate the ‘habit and
circumstances’ relied on, and (iii) narrate the basis on which the Claimant
asserted that, in relation to each day in question, the requirements of the
implied term relied on were satisfied. The response wholly failed to do so.
The only conclusion open to the Tribunal was that there had been no compliance
and that, therefore, the claim was struck out on 9 November 2011. That
should have been confirmed by the Tribunal; there was no application for strike
out before the Tribunal and the issue was not whether or not strike out ought
to have been ordered at that time as he had sought to make clear at the
hearing. As to disposal, Mr Brown submitted that there was no need for a
remit. The appeal should be allowed and I should determine the issue of
compliance; it was plain, he submitted, that there had been none and that the
claim had been struck out on 9 November 2011.
32.
For the Claimant, Mr Bradley moved that the appeal should be dismissed.
The Tribunal had provided adequate reasons and had not erred in law. The
documents that had “gone before” were not relied on as complying with the order
but they were relevant; the Tribunal was entitled to look at matters in
context. What was required was a qualitative response from the Tribunal and
that was what had occurred. It was not, he said, an error to take account of
what was said by the Claimant’s solicitor at the hearing. Mr Bradley did
not engage with the apparent contradiction between what was said by the Claimant’s
solicitor and what was said in the letter of 15 November namely that the
former was that the Claimant was relying on an implied term whereas the latter
was that he was relying on an express term.
33.
Regarding the Tribunal’s references at paragraphs 51 to 53 to the
guidance provided by Mustafa (and, impliedly, QPS),
proportionality and discretion, these were a record of matters which were, he
said unnecessary but did not detract from the essence of the judgment.
Mr Bradley said nothing further about the Tribunal’s reference to
exercising a discretion (paragraph 53) despite opening his submissions by
indicating that he accepted that strike out followed automatically if there was
non compliance with an “Unless Order” and the Tribunal had no discretion in the
matter.
34.
As to disposal Mr Bradley submitted that if the appeal was not
dismissed there should be remit to the same Tribunal, which failing to a fresh
one. It was not for this Tribunal to determine the issue because compliance
was a question of fact and there had been a voluminous inventory of paper
lodged in the Tribunal that was not in the appeal bundle. Further, a decision
here would preclude the Claimant’s right of review.
Discussion and Decision
35.
I have no hesitation in deciding that this appeal should be upheld. The
Tribunal erred in several respects, possibly because of confusion between the
principles applicable when deciding whether or not to order strike out under
rule 18(7) of the Employment Tribunal Rules (where the tribunal has a
discretion) and when rule 13(2) applies. Whatever, however, the reason, I am
satisfied of the following. First, whilst initially addressing the correct
question, namely had there been compliance with the order of 1 November –
in which case, if there had not, the only outcome open to it was to confirm
that the claim had already been struck out on 9 November - slipped into
the wrong mindset. Looking at matters in the round or in context, considering
issues of fair notice, remembering that strike out was a power that ought not
to be readily exercised, considering proportionality and reaching a decision by
means of the exercise of a discretion are all features which are relevant when
considering whether or not to order strike out under rule 18(7). They are
not, however, of any relevance when considering whether or not a
rule 13(2) order has been complied with. In such a case, the Tribunal has
already addressed the question of whether or not the deadly sword of strike out
should fall on the party against whom the order is sought and decided that
unless a particular direction is complied with, it should.
36.
As the relevant authorities demonstrate, the only issue for the Tribunal
at the stage this case had reached was that of whether or not the Claimant had
complied with the order of 1 November. It is not entirely clear whether
in the end of the day the Tribunal answered that question. At paragraph 48,
the Employment Judge states “arguably more care could have been exercised with
the somewhat brief response to the Order” but rather than then state whether or
not his decision was that there was compliance, he concludes that strike out
should be refused, a conclusion reached on the basis of his consideration of
the irrelevant factors to which I have referred and which has very much the
flavour of a rule 18(7) exercise. He seems to avoid actually dealing with the
sharp issue that was before him.
37.
I am satisfied that the response of 8 November was wholly
inadequate and so lacking in specification as to constitute a failure to comply
with the Tribunal’s order of 1 November. There is no attempt to
articulate the implied term relied on. There is no attempt to specify the
‘habit’ or ‘circumstances’ which the Claimant relies on as demonstrating that that
term was in fact agreed between parties. There is no attempt to state how it
was that whatever were the requirements of the implied term were satisfied by
the Claimant on each of the dates for which he was claiming. The response is
also flawed by internal contradiction; if the Claimant had not had sight of his
terms and conditions, how did he know that the term he was seeking to rely on
was not included in them, as opposed to being an implied term?
38.
I would add that whilst there is no question of the letter of
15 November being able to be relied on as amounting to compliance with the
order it is interesting to say the least that it appears to demonstrate an
acceptance on behalf of the Claimant that the earlier response was not good
enough. It is also unsatisfactory that the Tribunal appear to have relied on
an assertion about his case made by his solicitor which did not accord with
that letter, as I have noted above.
Disposal
39.
In these circumstances, I will pronounce an order upholding this
appeal. I do not consider that there is any requirement for a remit. The
voluminous papers referred to can have no bearing on the issue of whether or
not the response of 8 November complied with the order of
1 November. I will, accordingly, add to my order a declaration that this
claim was struck out on 9 November 2011.
