McMichael v East Sussex County Council

An unless order takes effect automatically on non-compliance, but the resulting strike-out is a judgment and may be reviewed under rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Where compliance is disputed, the Employment Judge must make a judicial determination after considering the parties’ representations, although a hearing is not always required. A review application must receive proper preliminary consideration. Where substantial points are raised, a review hearing may be necessary. The draconian nature of strike-out and the interests of justice remain relevant, although relief will not ordinarily be granted where the order was properly made and compliance has not occurred.

The claimant brought Employment Tribunal claims including race and religious discrimination, public interest disclosure and victimisation. Following repeated failures to provide ordered further and better particulars, the Employment Tribunal made an unless order requiring compliance by 12 March 2010, failing which the claims would be struck out. The claimant supplied a lengthy document, which the respondent said was non-compliant. The Employment Judge treated the claims as automatically struck out and refused a review without properly considering the documents or the claimant’s objections.

The claimant appealed. The central issues were whether the automatic strike-out constituted a judgment reviewable under rule 34, whether compliance had been properly determined, and whether the review application required further consideration.

1. The appeal was allowed in part. The Employment Judge’s decision on the strike-out could not stand because he had failed to consider the document supplied on 12 March 2010, the respondent’s objections and the claimant’s response. The EAT substituted its own decision that the claimant had not complied with the unless order and that the claim therefore stood struck out.
2. An unless order under rule 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 is a conditional judgment. On non-compliance, the sanction takes effect automatically, without an application or further hearing being necessary.
3. The automatic strike-out is nevertheless a final determination and therefore a judgment reviewable under rule 34. The Employment Tribunal is not functus officio. If compliance is disputed, the Employment Judge must determine the issue judicially, preferably the Judge who made the order, after considering the parties’ representations. A hearing is not necessarily required.
4. On review, the Tribunal may confirm, vary or revoke the decision. Variation may include allowing further time or imposing a fresh unless order. The interests of justice provide the governing basis for review; the detailed factors in CPR rule 3.9 are not mandatory in Employment Tribunal proceedings, although general civil-procedure principles may assist.
5. The refusal of review was fundamentally flawed because it proceeded on the same misapprehension that no document purporting to comply had been delivered. The refusal was quashed and the review issue was remitted to a different Employment Judge. The respondent remained entitled to apply for costs in respect of the review.

• Employment Appeal Tribunal: The appeal proceeded to a full hearing after HHJ Peter Clark, on 18 February 2011, directed that it proceed on an amended Notice of Appeal.
• Employment Tribunal: Employment Judge Simpson struck out the claims for non-compliance with the unless order and refused a review.
• Earlier EAT consideration: The appeal was initially dismissed on paper by HHJ Ansell on 7 September 2010.