Appeal No. UKEAT/0014/13/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
3 April 2013
Before
HIS
HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
MISS
R RICHARDS APPELLANT
MANPOWER
SERVICES LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
Unless Order – non-compliance - effect
The Respondent had failed to comply with an “unless order” and
had made no application in any form for relief against sanction. The
Employment Judge declined to make an order striking out the Respondent’s
responses: he ought to have made an order in effect declaring that the effect
of the “unless order” was that the responses were struck out automatically: Scottish
Ambulance Service v Laing [2012] UKEAT/0038/12. The Employment Judge’s
decision could not be read as granting relief against sanction, but it was
still open to the Respondent to apply to the Employment Tribunal for relief
against sanction.
HIS HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Miss Rowena Richards, the Claimant, against a decision
of Employment Judge Hutchinson dated 20 November 2012. It was the Claimant’s
case that Manpower UK Ltd, the Respondent, had failed to comply with an Unless
Order in consequence of which its response was struck out. Employment Judge
Hutchinson declined to strike out the responses.
2.
The appeal has been listed today with some urgency because the full hearing
of the proceedings was due to begin on Monday 8 April. I am told, however,
that that hearing has now been postponed.
The factual background
3.
The Claimant was employed by the Respondent as an Operator Services
Adviser with effect from 22 October 2007. In 2010 she brought grievances
alleging that she had been subjected to racial discrimination, victimisation
and harassment. She was absent from work on grounds of ill-health with effect
from April 2010. Her grievances when investigated were upheld in part. The
employees against whom she made these complaints made counter complaints. Two
other employees also raised grievances, making allegations of inappropriate
behaviour against the Claimant. After these grievances were investigated the
Respondent began disciplinary proceedings against the Claimant; she was dismissed
with immediate effect by letter dated 18 July 2011.
4.
The appeal is concerned with two sets of proceedings commenced by the
Claimant. In 2010, whilst she was still employed by the Respondent, she
commenced proceedings claiming race discrimination; including victimisation and
harassment. In 2011 after her dismissal she commenced further proceedings
alleging unfair dismissal, race and disability discrimination. There has been a
third set of proceedings but I am not concerned with those proceedings.
5.
At a Case Management Discussion held on 1 December 2011, the two sets of
proceedings were consolidated so that they would be heard together. The
resultant order is dated 7 December 2011. By paragraph 2.7 of that order it
was provided:
“By not later than 23rd January 2012, the parties
shall disclose to each together all documents in their possession, power or
control which are relevant to any issue in the case including in respect of
remedy whether or not the document supports that party’s case.”
There was also an order that a single bundle of documents should
be agreed by not later than 6 February, the Respondent to have conduct of
preparations of bundle. But this, of course, could only take place once the
order for disclosure was complied with.
6.
It was the Claimant’s position that the Respondent did not comply with
paragraph 2.7 of the Order. She set out her case in letters dated 6 March, 14
March and 28 March. The Respondent’s solicitors in a letter dated 15 March
accepted that the order had not been complied with. They explained that there
had been numerous overlapping grievances which the Respondent had to
investigate so that there was, “an enormous amount of paperwork”.
7.
A further Case Management Discussion was held on 11 May. The Employment
Judge would not have been able to make an immediate order striking out the
responses of the Respondent even if he had been minded to do so since this
matter would have required a Pre-Hearing Review. But he could and did make an
Unless Order. This provided as follows:
“The Respondent shall comply with paragraphs 2.7 and 2.8 of the
order of Judge Walker by not later than 4.00 pm on 1st June 2012.
All relevant documents and specifically interviews and/or witness statements
shall be in an unredacted form, save that it will be permissible to exclude
home addresses. If the Respondents fail to comply with this order then its
response would be struck out in its entirety without further consideration.”
8.
The Respondent delivered four lever-arch files of documents on 31 May,
but the solicitors’ covering letter indicated that there were further documents
to come. The letter said that some grievances impacted on the timing of the
outcome of the appeal against the Claimant’s grievances. Once they had
identified the grievances which “were linked with yours” they would provide a
further lever-arch file containing copies of those grievances and the
investigation into them. The letter said that the solicitors “were aware of
our continuing obligation in respect of disclosure.” In due course on 19 July,
the Respondent’s solicitors served two further files of documents “relating to
interlinked grievances”. In an email dated 23 July they said that “we consider
that this completes full disclosure”.
9.
In subsequent correspondence the Claimant made it clear that, in her
opinion, the Respondent had not complied with the Unless Order in time so that
the response should be struck out. The point was made in her letter dated 2
August, again on 14 August and again on 21 September. The Claimant sought
further disclosure at a Case Management Discussion which took place on 28
September. The Employment Judge dealt with her application for further
disclosure but he did not address the point that the Respondent had not
complied with the Unless Order. The Claimant pressed the matter again in a
letter dated 12 November. The Respondent’s solicitors were asked for their
comments. They said that they could see no grounds for an application to
strike out. They said they were “unsure exactly what the Claimant is seeking”.
10.
The matter then came before Employment Judge Hutchinson on paper. He
said:
“I acknowledge the Claimant’s request to strike out the
Respondents response on the grounds that they did not comply with the Unless
Order issued by Employment Judge Blackwell on 11th May 2012. It
appears that the order has been subsequently complied with. The parties have
agreed the bundle of documents and the case is ready to proceed to exchange of
witness statements. I have already dealt with the issue of whether appropriate
documents have been provided by my Case Management Discussion notes. The
application to strike out the response is therefore refused.”
11.
It is against this decision that the Claimant appeals.
Submissions
12.
The Claimant’s submission advanced on her behalf today by Mr Kamara is a
simple one. The Unless Order provided for the response to be struck out in its
entirety in the event of non-compliance. There was non-compliance: partial
compliance will not suffice. Employment Judge Hutchinson should therefore have
issued an order confirming that the Respondent’s response was struck out.
Reliance is placed on Scottish Ambulance Service v Laing [2012]
UKEAT/0038/12.
13.
Ms Jeram who appears today on behalf of the Respondent does not dispute
that the Unless Order would take effect in the event of partial
non-compliance. Further, she accepts that there was partial non-compliance.
At the very least at paragraph 2.8 of the order was not complied with because
delivery of the four lever-arch files was so close to the deadline that it
allowed no time for compliance.
14.
Ms Jeram makes two submissions, the second of which she describes as her
primary submission. Firstly she submits that the Respondent complied with
paragraph 2.7 of the Unless Order by delivery of the four lever-arch files in
time. She submits that the obligation of the Respondent was limited to
standard disclosure and that standard disclosure did not require the delivery
of the two additional bundles provided. She relies on rule (10)(2)(d) of the
Employment Tribunal Rules and part 31.6 of the Civil Procedure Rules.
15.
Secondly, she submits that the Employment Judge had power to grant
relief against sanction in the Unless Order. She relies on North
Tyneside Primary Care Trust v Ainsley & Ors [2009] ICR 1333 and Thind v Salvesen Logistics [2010] UKEAT/0487/09. She
argues that the only reasonable reading of the decision of Employment Judge
Hutchinson on 20 November is that he was granting relief to the Respondent
against activation of the Unless Order. Once granted that this was the case,
she submits that the Appeal Tribunal should not interfere with his decision.
She relies on Governing Body of St Albans School v Neary [2010] IRLR 124. In any event, she submits that his decision was plainly and
unarguably right.
Rules
16.
The power to order disclosure derives from section 7(2)(e) of the Employment
Tribunals Act 1996 which authorises regulations to be made providing for: “…
in England and Wales such discovery or inspection of documents as may be
ordered by a County Court.” This power is reflected in rule 10(2)(d) of the
Employment Tribunal Rules of Procedure. The power to make an Unless Order is
contained in rule 13(2) of the Employment Tribunal Rules of Procedure.
Discussion & conclusions
17.
It is plain law that the sanction contained in a properly drafted Unless
Order will take effect in accordance with its terms. The law was discussed in Scottish
Ambulance Service v Laing at paragraphs 15 to 26. Lady Smith
summarised the position in paragraph 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.”
18.
If there is a dispute as to whether there has been compliance with an
Unless Order, the ET has of course power to determine that dispute and rule
whether there has been compliance with the Unless Order. Moreover, there may
be an application for relief from the sanction contained in the Unless Order.
The precise route through the Employment Tribunal Rules of Procedure by means
of which such an application should be made is not straightforward; see the
discussion by Underhill P in North Tyneside PCT v Ainsley at
paragraphs 23 to 29. There is, however, to my mind no real doubt that the
power to do so exists and can be exercised if in no other way by the use of
rule 10(1)(m).
19.
The difficulty in this case arises because, notwithstanding the repeated
references by the Claimant in correspondence to the terms of the Unless Order,
neither the Respondent nor the ET specifically addressed the question whether
the order had been complied until Employment Judge Hutchinson considered the
matter on paper in November. In November Employment Judge Hutchinson seems to
have proceeded on the basis that the Unless Order had not been complied with;
see the references in his Reasons to “subsequently complied with”. In this Ms
Jeram now accepts that he was correct.
20.
It is, however, convenient at this point to deal with Ms Jeram’s first
submission; namely that in respect of paragraph 2.7 the Unless Order had been complied
with because only standard disclosure was required. I reject this submission.
The order for disclosure in this case was a wide order; wider than standard
disclosure would be in the County Court. The County Court is, however, not
limited to making an order for standard disclosure; see CPR rule 31.5. It was
within the power of the County Court and therefore within the power of the ET
to make the order it made and there was reason for doing so. The Respondent’s
solicitors did not on their own admission comply with it in time.
21.
The order not having been complied with, the Employment Judge ought to
have recognised that the sanction had taken effect and that an application for
relief from sanction was required. This brings me to Ms Jeram’s principal submission,
namely that the Employment Judge in effect granted relief against sanction. I
cannot read the reasons of Employment Judge Hutchinson in this way: to my mind
he was addressing the different question whether he ought to make an order
striking out the claim. Moreover, there had been no application for relief
against sanction and the Claimant had no opportunity to make submissions on
such an application. Moreover, Employment Judge Hutchinson did not make an
order which gave relief against sanction.
22.
It follows that, as the position presently stands, the sanction in the
Unless Order has taken effect and I will to that extent allow the appeal and
grant a declaration.
23.
Ms Jeram, faced with the possibility that I might reach this conclusion,
said that the Respondent would wish to make an application for relief against
sanction. She said that it was plain and obvious that relief should be
granted. I would not go this far. Where there has been non-compliance with an
Unless Order this is always an important matter for an Employment Judge to bear
in mind: Thind v Salvesen Logistics at paragraph 36. But there
is a good arguable case that relief should be granted which must be addressed
by means of an application to the Employment Tribunal.
