EAT PRACTICE AND PROCEDURE
(1) Striking out – test of substantial compliance; (2) stay.
Two appeals arising out of the same Tribunal proceedings were considered. The first was an appeal by the Respondent against a judge’s refusal to accept that the Claimant had not complied with an unless order requiring her to give sufficient particulars of her claim so that (in effect) the respondent could know what case it had to prepare to meet. Her finding that there had been substantial compliance was reversed: she appeared to have adopted the wrong test in treating the touchstone of ‘substantial compliance’ quantitatively rather than qualitatively, her reasoning was inconsistent, and the particulars supplied in purported compliance with the order were plainly inadequate. The claim therefore stood struck out, but an application for relief from sanction was to be anticipated, to aid which various observations were made.
By the second appeal the appellant sought to lift a stay which had been imposed on her ET claim following her commencement of a High Court claim covering much the same factual territory. She argued that the discretion to stay had been wrongly exercised by failing to take into account that the issue of proceedings was ‘purely protective’, and that in reality the Claimant could not afford to pursue them. Her appeal was rejected.
The Appeal Tribunal expressed the desire that the real issues should be heard and determined, and to that end anticipated that an application for relief from sanction would follow against the strike-out. To facilitate that, and enable the Claimant to make an informed choice whether she wished to persevere with her High Court claim (which she had said was ‘protective’ only), the Appeal Tribunal lifted the stay until the conclusion of any application for relief from sanction had been determined, provided that that application was made within a reasonable time.
Langstaff P, J
[2013] UKEAT 0095 – 13 – 1704
Bailii
England and Wales
Employment
Updated: 14 November 2021; Ref: scu.511058