Bertolin v Thornbury Estates Ltd

An Employment Appeal Tribunal may strike out an appeal for non-compliance with an order requiring medical evidence where it has given the appellant a fair opportunity to comply and the evidence remains inadequate. On a preliminary hearing, it should nevertheless consider whether the grounds disclose an arguable error of law, even if the appellant is absent. Case management must balance medical frailty and lack of representation against the need for litigation to reach a conclusion. A Civil Proceedings Order should not be made lightly, particularly after a single set of proceedings.

The claimant brought sex discrimination and related claims against her former employers. On 7 June 2005, the Employment Tribunal refused a postponement, struck out the claim for unreasonable conduct and non-compliance with directions, and ordered her to pay £10,000 towards the respondent’s costs.

The Employment Appeal Tribunal postponed a preliminary appeal hearing to allow medical evidence addressing the claimant’s inability to attend and the circumstances in which she might be fit to participate. After receiving an inadequate report and no sufficient explanation for further non-compliance, it struck out the appeal on 16 March 2006. Pill LJ refused permission to appeal on the papers. The renewed application concerned whether the EAT had acted precipitately or was entitled to strike out the appeal for non-compliance.

Application refused. Lord Justice Sedley held that the Employment Appeal Tribunal had not arguably erred in law by striking out the appeal for non-compliance with its order.

1. The EAT had initially postponed the preliminary hearing to give the claimant an opportunity to provide specific medical evidence. The report later supplied repeated the earlier diagnosis and prognosis but did not explain why she could not cope with a document-based hearing conducted by her partner, or when she might be fit for any necessary cross-examination. The EAT was therefore entitled under the rules to proceed on the basis of non-compliance and strike out the appeal without determining the grounds in detail.
2. The EAT was not bound simply to dismiss an appeal for non-compliance. Where a notice of appeal identifies an obvious error by the Employment Tribunal, it is strongly arguable that the EAT must allow the appeal to proceed, with or without preliminary argument. At a preliminary hearing, it should assess the grounds on their merits whether or not the appellant appears. Those observations did not assist this claimant because the grounds were unlikely to disclose an error of law and the EAT had made a sustainable judgment that the medical evidence remained insufficient.
3. Courts must maintain a working balance between accommodating medical frailty or lack of representation and bringing litigation to a conclusion in the interests of both parties. Neither tribunal arguably erred in law in seeking that balance.
4. The respondent’s application for a Civil Proceedings Order was refused. Such orders are not to be made lightly, especially where there has been only a single set of proceedings.

1. Court of Appeal (Civil Division): Sedley LJ refused the renewed application for permission to appeal.
2. Employment Appeal Tribunal: After postponing the preliminary hearing to obtain further medical evidence, the EAT struck out the appeal on 16 March 2006 for non-compliance.
3. Employment Tribunal: On 7 June 2005, the tribunal refused a postponement, struck out the claim, and ordered £10,000 towards the respondent’s costs.