Chambers-Mills v Allied Bakeries

An employment tribunal may strike out a discrimination claim where the claimant’s conduct and non-compliance with tribunal orders make a fair hearing impossible. The power is not confined to cases where an unless order has taken effect. The tribunal must consider the wider procedural history, including failure to co-operate with necessary expert evidence. A party seeking relief without the opponent present must give full and frank disclosure of all relevant documents and information. An appellate court may refuse further adjournment where the history is protracted and the respondent is entitled to final resolution.

The appellant brought disability discrimination complaints against her former employer. The employment tribunal struck out the complaints because she repeatedly failed to comply with orders requiring co-operation with jointly instructed medical experts, including the release of medical records and attendance at an examination. The tribunal considered that a fair hearing was no longer possible.

The Employment Appeal Tribunal, presided over by Burton J, upheld that decision on 18 November 2008. Permission to appeal was later granted by Etherton LJ, who considered that the tribunal might not have appreciated that an unless order had been waived and that the appellant might not have had adequate notice of the strike-out application. The Court of Appeal examined the correspondence and the tribunal’s reasons. The central issue was whether the strike-out was procedurally fair and legally justified.

1. Appeal dismissed. The Court of Appeal unanimously upheld the strike-out of the disability discrimination complaints.
2. Lord Justice Hooper held that the employment tribunal had not struck out the complaints merely because the appellant had failed to comply with an unless order. The relevant question was whether her persistent failure to co-operate with jointly instructed medical experts and to comply with tribunal orders meant that the tribunal could not conduct a fair hearing. The tribunal had examined the full history and was entitled to conclude that it could not fairly determine whether the appellant was a disabled person or resolve the claims without the required medical evidence.
3. The correspondence showed that the chairman knew the unless order had effectively been revoked. The strike-out application was considered on the broader basis of the appellant’s continuing failure to co-operate, rather than by automatic operation of the original order. The appellant had been aware of the need to co-operate with two experts and could not fairly complain that the tribunal had proceeded without adequate notice of the issue.
4. The prolonged history, repeated non-compliance, failure to attend an arranged consultation and absence of a joint expert’s report made a fair and proper hearing impossible. The tribunal was therefore fully entitled to strike out the case.
5. Lord Justice Rimer and the Master of the Rolls agreed. Lord Neuberger additionally emphasised that an applicant seeking relief in the absence of the other party must make full and frank disclosure of all relevant documents and information. A further adjournment was refused, and the appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the decision of the Employment Appeal Tribunal.
• Employment Appeal Tribunal: Burton J, on 18 November 2008, upheld the employment tribunal’s strike-out judgment.
• Employment tribunal: The appellant’s disability discrimination complaints were struck out because of persistent non-compliance and failure to co-operate with the required medical evidence.
• Court of Appeal (permission stage): Etherton LJ granted permission to appeal in [2009] EWCA Civ 1440 after considering possible procedural failures concerning the waived unless order and notice of the strike-out application.