Thind v. Salvesen Logistics Ltd

Relief from an unless order is determined by a broad assessment of the interests of justice and the overriding objective. Relevant considerations generally include the reason for default, whether it was deliberate, the seriousness of the breach, prejudice to the other party, and whether a fair trial remains possible. The importance of enforcing unless orders is always relevant, but no single factor is determinative. An application for review should receive a hearing where substantial issues are raised. Carelessness by a party’s solicitors is not automatically fatal, particularly where the breach is understandable, the application is prompt, the default is remedied, and the other party is not seriously prejudiced.

The appellant brought claims including disability discrimination. Directions required medical evidence and a statement addressing the effect of the alleged disability. Following several extensions, an expert report was served, but the appellant’s statement was inadvertently omitted. The disability discrimination claim was automatically struck out under an unless order.

An application for review under the Employment Tribunal Rules of Procedure was refused summarily by Employment Judge Lewis under rule 35(3). The judge later considered directing a review hearing but withdrew that proposal. The central issues were whether a review hearing should have been convened and whether relief from the strike-out should be granted.

1. Appeal allowed. The Employment Judge’s refusal of the review application was legally flawed because the reasons did not properly assess the relevant circumstances, particularly the explanation for default, the consequences of the earlier extensions, and prejudice to the respondent.
2. Following Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190, an employment tribunal is not required to apply Civil Procedure Rules rule 3.9. The tribunal must decide whether, in the interests of justice and the overriding objective, relief should be granted despite breach of an unless order. Relevant factors commonly include whether the default was deliberate, the seriousness of the breach, prejudice, and whether a fair trial remains possible. The existence and importance of the unless order is a further significant consideration, but no factor is necessarily decisive.
3. Rule 35(3) concerns a preliminary assessment. Where substantial issues are raised by the review application, the tribunal should direct a review hearing under rule 36 rather than dispose of the application summarily.
4. Using its power under section 35 of the Employment Tribunals Act 1996, the EAT determined the substantive review issue itself. Relief was required because the default was an understandable and non-deliberate oversight by solicitors, the missing statement was supplied promptly, and the respondent was not seriously prejudiced. Sufficient time remained to obtain medical evidence and prepare for a fair hearing.
5. The decision was fact-sensitive. Unless orders remain an important procedural tool and may properly lead to strike-out even where a fair trial remains possible. Relief should not therefore be regarded as usual.

• Employment Appeal Tribunal: Allowed the appeal from Employment Judge Lewis’s refusal dated 14 September 2009. The EAT conducted the review under section 35 of the Employment Tribunals Act 1996, revoked the strike-out, and granted relief from the unless order.