The Employment Appeal Tribunal (EAT) has upheld an appeal against the striking out of a man’s claims after he failed to comply with a case management order, finding that the Employment Tribunal (ET) had failed to consider whether a fair trial was still possible and that an unless order should have been made instead.
The man had brought a number of claims including disability discrimination, failure to make reasonable adjustments, harassment and victimisation. The ET considered that it was not possible to work out from the particulars of claim the precise allegations he wished to pursue and ordered him to respond to a list of issues compiled by the employer.
After he failed to so do, the employer applied to strike out his claims. Concluding that the claims should be struck out, the ET found that there had been a ‘persistent and deliberate’ delay by the man, and observed that he had been warned that strike out was likely if he failed to comply with the order.
The man appealed to the EAT, claiming that the ET had applied the wrong legal test to the question of strike out, had failed to ask itself whether a fair hearing was still possible and had not taken sufficient account of his status as a litigant in person and a disabled person.
The EAT noted that the ET had not at any stage considered whether it was possible to have a fair trial. The ET had stated that, for a claim to be struck out, either there needed to be a deliberate and persistent disregard of required procedural steps or a fair trial must be impossible. The ET seemed to have regarded these reasons as alternatives, and had based its decision on the former without looking at the impact of the latter. This was an error of law.
The EAT did not think the ET had been right to strike out the claims without first making an unless order. It noted that if an unless order had not been complied with, the claims would have been struck out automatically. If it had been, a fair trial was certainly possible. The fact that the man had since filed the required response demonstrated that there should have been much greater optimism on the ET’s part about the possible effect of an unless order in securing compliance. The EAT considered that it was hard to think of a case in which it would be right to go directly from non-compliance to striking out without first making an unless order. The EAT concluded that the appeal must be allowed.