Burmis v Aylesford School & Anor

An appeal against refusal to revoke an unless order may be competent where the refusal itself is an order. However, an appeal will be dismissed as academic where a later unappealed review judgment has independently given effect to the sanction. A postponement should not ordinarily be granted merely because medical evidence certifies unfitness for work; the evidence must address fitness to attend the hearing. Procedural sanctions under Employment Tribunal rule 13(2) may result in dismissal of outstanding claims where the claimant fails to comply with an unless order and is refused relief from sanction.

The claimant appealed against orders made by an Employment Judge on 7 May and 2 June 2009 during proceedings arising from lengthy discrimination and unfair dismissal claims. The 7 May unless order provided that, on non-compliance with disclosure obligations, the Third Respondent’s review application would succeed and the remaining findings against him would be dismissed.

The claimant failed to comply. The Employment Judge refused on 2 June 2009 to revoke the unless order. A full Employment Tribunal later conducted the review, refused relief from sanction and dismissed the remaining claims against the Third Respondent. Permission was granted for two grounds concerning the 2 June order. The central issues were whether there was an appealable order, whether the grounds were made out, and whether the appeal had become academic.

1. Postponement. The appeal proceeded in the claimant’s absence. The medical certificates stated that she was unfit for work, but did not state that she was unfit to attend court. Applying the guidance in Andreu v The Lord Chancellor’s Department [2002] IRLR 728, and distinguishing the position in Teinaz v London Borough of Wandsworth [2002] IRLR 721, there was no sufficient medical basis for postponement. Fairness also required regard to the respondent’s entitlement to finality.

2. Appealable order. Although the respondent argued that the 2 June letter contained no appealable order, the refusal to revoke the 7 May unless order was itself an order susceptible to appeal.

3. Grounds of appeal. The complaint that the claimant had not received one of the 7 May orders failed on the evidence. The relevant order had been received by her solicitor.

4. The challenge based on the alleged substitution of a procedural decision for the findings of the original full Tribunal was misconceived. The Employment Judge had not reviewed or substituted the original judgment. She had recorded the effect of the unless order, which had taken effect on the claimant’s non-compliance under Employment Tribunal rule 13(2).

5. Academic appeal. In any event, success on either ground would have been academic. The later unappealed review judgment independently allowed the Third Respondent’s review application, refused relief from sanction and dismissed the remaining claims. The appeal therefore failed and was dismissed.

• Employment Appeal Tribunal: Earlier appeals arising from the original Tribunal judgment were dismissed in part and allowed in part; the judgment is referred to as EAT/1-3/08/LA.
• Employment Tribunal: On 14 July 2009, the full Tribunal chaired by Employment Judge Wallis refused relief from sanction, allowed the Third Respondent’s review application and dismissed the remaining claims against him.
• Employment Appeal Tribunal: Permission was granted on two grounds concerning the Employment Judge’s refusal on 2 June 2009 to revoke the unless order. The present appeal was dismissed.