Cafagna v ISS Mediclean Ltd & Ors

Employment tribunals may use case-management powers to require detailed particulars and evidence in complex discrimination and protected-disclosure claims. Failure to comply with fundamental orders may justify striking out a claim, particularly where the claimant has been given notice and has not provided material information.

A party’s absence does not prevent a tribunal from proceeding under rule 27 where the party voluntarily fails to attend. However, before striking out a freestanding claim for non-compliance, the tribunal must give adequate reasons and consider whether a fair trial remains possible and whether a lesser order would suffice.

The claimant brought numerous employment claims in six claim forms against the respondents, including disability discrimination and protected-disclosure claims. Employment tribunals made detailed case-management orders requiring particulars, medical evidence and information about alleged disclosures.

One tribunal struck out the disability discrimination and protected-disclosure claims for non-compliance. A later full tribunal dismissed the disability claim after the claimant failed to attend and produced no evidence establishing disability. Another tribunal dismissed remaining claims in the claimant’s absence.

The claimant appealed to the Employment Appeal Tribunal. The central issues were whether the procedural orders and dismissals were lawful, and whether the protected-disclosure claim could be determined without further reasons from the Employment Judge.

1. Outcome. The appeals concerning the tribunal’s constitution, the claimant’s voluntary absence, the dismissal of the disability claim and the remaining claims had no reasonable prospect of success. The appeal concerning the protected-disclosure claim was adjourned for further reasons and a full hearing.
2. There was no error of law in a Judge-alone pre-hearing review under rule 18. The public importance of discrimination claims did not displace ordinary case-management requirements or the tribunal’s power to determine issues at an interim stage.
3. The tribunals were entitled to proceed in the claimant’s absence under rule 27(5), since he knew of the hearings and chose not to attend. Fairness applied to both parties.
4. The claimant bore the burden of proving disability under section 1 of the Disability Discrimination Act 1995. The full tribunal was entitled to find that he had supplied no sufficient evidence. That final determination made the earlier challenge to the interim strike-out of the disability claim academic.
5. The detailed orders requiring particulars and medical evidence were fundamental to the disability claim. The tribunal was entitled to regulate the proceedings in accordance with the approach endorsed in Hendricks v the Metropolitan Police Commissioner [2003] IRLR 96.
6. The protected-disclosure claim was freestanding and had not been finally determined on its merits. Further reasons were required on whether the claimant’s materials answered the order, whether a fair trial remained possible, and whether a lesser order, such as an unless order, was appropriate, having regard to Abegaze v Shrewsbury College of Arts & Technology [2010] IRLR 238 and Blockbuster Entertainment Ltd v James [2006] IRLR 630.

• Employment Appeal Tribunal: Determined the claimant’s rule 3(10) applications. The disability and other procedural challenges were rejected. The protected-disclosure strike-out issue was adjourned for further reasons and a full hearing.
• Employment Tribunals: Various tribunals made case-management orders, struck out the disability and protected-disclosure claims for non-compliance, dismissed the disability claim after a preliminary hearing in the claimant’s absence, and dismissed remaining claims under rule 27(5) and (6).