The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a strike-out order, there were two cardinal conditions at least one of which must be met. Either the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps or it has made a fair trial impossible. If one of these conditions is met, the court must then also consider whether striking out is a proportionate response.
Sedley LJ discussed the power to strike a case out: ‘This power, as the employment tribunal reminded itself, is a Draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.
and
‘It is common ground that, in addition to fulfilling the requirements outlined above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was ‘the only proportionate and fair course to take’. This aspect of their determination played no part in Mr James’s grounds of appeal and accordingly plays no part in this court’s decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us.
It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.’
Sedley LJ
[2006] EWCA Civ 684, [2006] IRLR 630
Bailii, Bailii
Employment Tribunals (Constitution and Rules etc) Regulations 2004
England and Wales
Citing:
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – De Keyser Limited v Wilson EAT 20-Mar-2001
The claimant appealed against an order striking out her claim.
Held: The right to respect for private life is qualified by the right for both parties to have a just trial of the issues between them; and it has to be borne in mind that it was . .
Cited – Bolch v Chipman EAT 19-May-2003
EAT The EAT considered the consequences, of a decision to strike out a Notice of Appearance under Rule 15(2)(d).
Held: The EAT will require an employment tribunal, among other things, to consider the . .
Appeal from – James v Blockbuster Entertainment Ltd EAT 6-Oct-2005
EAT Practice and Procedure
Strike out case. ET struck out two claims for failing to comply with tribunal orders. Whether a proportionate sanction; whether they erred on a proper understanding of facts. . .
Cited by:
See Also – James v Blockbuster Entertainment Ltd EAT 18-Aug-2006
EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was . .
See Also – James v Blockbuster Entertainment Ltd CA 23-Oct-2008
The claimant renewed his application for leave to appeal.
Held: The claimant’s first ground was unarguable. His original application failed to comply with the requirements of the 2002 Act. On the second ground, the tribunal had disagreed with . .
Cited – Ridsdill and others v Smith and Nephew Medical, Duffy, Whittleton EAT 22-Jun-2006
EAT Practice and Procedure – Striking-out/dismissal.
Chairman’s decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal . .
Cited – Tisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
Cited – Abegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Chambers-Mills v Allied Bakeries CA 26-Nov-2009
The claimant renewed orally her request for leave to appeal against the EAT which had upheld loss of her claim, after the Employment Tribunal had found her conduct of the proceedings unreasonable in failing to co-operate in a medical enquiry into . .
Cited – Emuemukoro v Croma Vigilant (Scotland) Ltd and Another (Practice and Procedure) EAT 22-Jun-2021
Response Properly Struck Out – Non-compliance
On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Updated: 19 November 2021; Ref: scu.245865