The Chairman of the Industrial Tribunal had struck out the employers’ Notice of Appearance for failure to comply with an order for particulars. Hld: The employers’ appeal to the EAT was dismissed. The court considered a strike out of an application before the Industrial Tribunal: ‘The striking-out of the entire notice of appearance was indeed a severe order, one that might even be regarded by many people as harsh. But it has to be remembered that Parliament has conferred upon the tribunals a jurisdiction of an exceptional kind and has constituted them at the same time masters (within their broadly framed procedural rules) of their own procedure. They are required to dispense their own distinctive form of justice: one that keeps formality to a minimum, which shuns legalism, and which sets out to achieve the maximum expedition consistent with fairness to the parties. Expedition is required not only by the nature of the cases themselves, which frequently involve hard or hurt feelings better given an early outlet than left to be brooded over. It is also called for by the nature of the remedy which the tribunals are required to provide. They are under a statutory duty to consider as their primary remedy in cases where a dismissal has been found to be unfair an order for reinstatement or re-engagement. The practicability of making any such order is bound in almost every case to diminish with the passing of time.
It seems to us, therefore, that the appeal tribunal should in principle be slow to infer a misguided exercise of discretion merely because an industrial tribunal happens in any particular case to have exercised the striking-out discretion with more severity (or for that matter with greater lenience) than might have been expected from a master or district registrar faced with comparable conduct in ordinary civil litigation. We see the order in the present case as a stern decision, certainly, but not as one with which there is any scope for intervention on our part. We have not been persuaded that the chairman left out of account anything which he ought to have had in mind or improperly took into account anything that was not necessary or relevant to the due exercise of his discretion. Nor do we regard his decision as perverse. Mr Malek went so far as to submit that a total striking-out order lay outside the scope of a proper exercise of the discretion altogether, because a striking-out of the insufficiently particularised paragraph 8 would have been sufficient to enable the industrial tribunal to do justice at the hearing. We do not agree. An order so limited would not have done anything to compensate the employee for what he had suffered as a result of the delay which had been occasioned by the failure to give those particulars, and the chairman was entitled in our judgment to take the view which he expressed in his decision that some more powerful and conspicuous sanction was required to demonstrate that the interlocutory directions of a tribunal are not made lightly and that parties who treat them casually are liable to do so at peril of losing their case altogether.’
Citations:
[1985] ICR 578, [1985] IRLR 406
Jurisdiction:
England and Wales
Cited by:
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Applied – A v B and Another EAT 18-Feb-1997
The respondents appealed against a finding of unlawful sex discrimination. The claimant had been seeking psychotherapy, and the defendant sought discovery of her therapy history.
Held: The notes may have been relevant, and an order should have . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 12 April 2022; Ref: scu.277525