St Albans Girls' School & Anorl v Neary

In employment tribunal proceedings, CPR 3.9(1) is not incorporated as a mandatory checklist for reviewing a sanction. An employment judge must consider all relevant circumstances, avoid irrelevant considerations, and give reasons sufficient to show that the decision was rational, fair and proportionate. The CPR factors may be a useful prompt, but each need not be expressly addressed. A strike-out for deliberate and persistent non-compliance may be proportionate even where prejudice is limited and no hearing date is endangered. An appellate court should not interfere merely because it might have reached a different conclusion.

Mr Neary brought employment tribunal claims against the governing body of St Albans Girls’ School and Hertfordshire County Council alleging disability discrimination, sexual-orientation discrimination and victimisation. His claim was automatically struck out after he failed to provide ordered further particulars by the date specified in an unless order.

The employment judge refused a review. The Employment Appeal Tribunal allowed Mr Neary’s appeal, holding that the judge had been required to consider the factors in CPR 3.9(1), and remitted the matter for review by another employment judge. The central issue was whether those factors had to be expressly considered and whether the original decision was legally or rationally open to challenge.

1. Appeal allowed. The Court of Appeal allowed the appeal from the Employment Appeal Tribunal and restored the employment judge’s decision refusing review of the automatic strike-out.
2. Lady Justice Smith held that CPR 3.9(1) had not been incorporated into employment tribunal practice. Parliament had incorporated the overriding objective but not the civil-court relief-from-sanctions rule. The court therefore overruled the line of Employment Appeal Tribunal authority which had effectively required employment judges expressly to consider all nine CPR 3.9(1) factors.
3. The correct approach was to consider all relevant factors and circumstances, exclude irrelevant matters, and decide rationally and in accordance with the purpose of the governing legislation. The CPR 3.9(1) list could be used as a checklist, but an employment judge was not required to state views on every factor. Reasons had to make the relevant facts and the proportionality of a strike-out sufficiently clear to the parties and an appellate court.
4. On the facts, the employment judge had implicitly rejected the asserted confusion about the orders. Mr Neary had received the unless order, had been present when the original order was made, had received reminders and warnings, and still failed to provide the particulars. The non-compliance was deliberately and persistently continued. The judge was entitled to conclude that a review had no reasonable prospect of success and that strike-out was justified. Limited prejudice and the absence of an imminent hearing date did not compel a further opportunity to comply.
5. Lord Justice Sedley agreed, adding that the effect on the parties may sometimes require express attention and noting that the particulars may not have been wholly necessary. Lord Justice Ward also agreed. Both confirmed that Blockbuster Entertainment was consistent with Afolabi.

• Court of Appeal (Civil Division): appeal allowed; the Employment Appeal Tribunal’s decision was set aside and the employment judge’s decision restored.
• Employment Appeal Tribunal (UKEAT028108LA): appeal allowed and the matter remitted for a review hearing before a different employment judge.
• Employment Tribunal: automatic strike-out took effect for failure to comply with the unless order; the application for review was refused.