Opara v Partnerships in Care Ltd

A contested review of an automatic strike-out under rule 36(1) of the Employment Tribunal Rules 2004 should ordinarily be determined at a hearing. The paper procedure in rule 35(3) is confined to the preliminary decision whether the application should be refused because there are no grounds or no reasonable prospect of revocation.

When considering relief from a sanction, a tribunal must give sufficient reasons for its material factual findings and show that strike-out is just and proportionate. Its principal focus should be the default giving rise to the sanction, its explanation, consequences and promptness of the remedial application. Contested collateral matters need not be decided, particularly where they are not directly related to that default.

The claimant had succeeded in his unfair-dismissal claim and sought compensation. At a remedies hearing, the Employment Tribunal made an unless order requiring production of bank statements for a specified current account by 4 December 2008. Some statements were supplied less than a day late. The claimant promptly sought relief from the resulting automatic strike-out.

The Tribunal refused relief on 1 May 2009 after considering the matter in chambers without the parties present. It found that the claimant had deliberately failed to disclose a savings account and had been untruthful on oath. The claimant challenged both the procedure and the adequacy of the reasons. The EAT treated the appeal as extending to the 1 May decision.

1. Appeal allowed. The refusal of relief from the automatic strike-out was set aside and the issue was remitted to a freshly constituted Employment Tribunal.

2. The Tribunal had conducted a substantive review under rule 36(1), rather than the preliminary paper consideration permitted by rule 35(3), of the Employment Tribunal Rules 2004. A fully contested rule 36 review should not ordinarily be determined without a hearing. Rule 14 contemplated a review hearing with notice and an opportunity for written and oral submissions.

3. Fairness independently required a hearing. The Tribunal made a finding akin to dishonesty, namely that the claimant deliberately withheld documents and had given untruthful evidence. A finding of that seriousness could not fairly be made without giving him a full and proper opportunity to answer it.

4. The reasons were also inadequate. They did not address the claimant’s explanation for not initially identifying the savings account, despite its being visible from the current-account statements. Nor did they address that the savings account disclosed no independent income and had been supplied immediately when requested. The contemporaneous notes did not directly support the finding that the claimant had sworn that he had no other account.

5. In deciding relief from sanction, a tribunal should concentrate on the magnitude and explanation of the actual default, its consequences for the parties and proceedings, the consequences of the sanction, and the promptness of the application. The relevant default was the late provision of some current-account statements. Collateral and heavily contested allegations need not be determined merely because they are advanced as part of “all the circumstances”. There was no general disclosure protocol in Employment Tribunal proceedings and no order requiring disclosure of the savings account.

• Employment Appeal Tribunal: allowed the appeal against the refusal of relief from the automatic strike-out and remitted the issue to a fresh Tribunal.
• Employment Tribunal: on 1 May 2009 refused a review application seeking relief from an unless order which had automatically struck out the unfair-dismissal claim on 4 December 2008.