Mustafa v Guy's And St Thomas NHS Foundation Trust

An unless order for further and better particulars is breached only where the replies, considered individually or as a whole, are plainly incomplete or significantly inadequate, having regard to their number, quality, importance and whether they represent a genuine attempt to comply.

Relief from an automatic strike-out requires a rational and proportionate judgment in the interests of justice. Deliberate or persistent non-compliance and the possibility of a fair trial are important considerations, but they do not remove the need for a separate proportionality assessment. The Employment Judge must explain the relevant findings and reasoning sufficiently to show that the sanction is just.

The claimant brought Employment Tribunal claims including unfair dismissal and disability discrimination under the Disability Discrimination Act. The Respondent sought further and better particulars. Following repeated non-compliance, the Tribunal made an unless order providing for automatic strike-out.

The Employment Judge found non-compliance, struck out all claims, granted relief in respect of unfair dismissal, but refused relief in respect of disability discrimination and awarded costs. The claimant appealed, challenging both the finding of non-compliance and the refusal of relief.

1. Appeal allowed. The Employment Judge’s reasoning on both non-compliance and relief was insufficiently articulated, so the appellate tribunal could not determine whether the correct legal approach had been followed.
2. On non-compliance, Reiss v Woolf was no longer applicable in the context of further and better particulars. The approach in QPS Consultants Limited v Kruger required consideration of whether the replies, viewed individually or collectively, were plainly incomplete or significantly fell short of what was required. Relevant matters included the number and proportion of inadequate replies, their quality, the reason for the inadequacies and their importance to the litigation. The Tribunal should also ask whether there had been a genuine attempt to answer the requests.
3. On relief from an automatic strike-out, the decision is an exercise of judgment in accordance with the relevant legislation and the overriding objective under regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The judge must consider relevant circumstances, including the reason for default, prejudice, the possibility of a fair trial, the importance of enforcing orders and proportionality.
4. The principles in Blockbuster Entertainment Ltd v James and Neary v Governing Body of St Albans Girls School required attention to deliberate or persistent procedural disregard, whether a fair trial had become impossible or materially compromised, and whether strike-out was a proportionate response. The factors were case-sensitive; the judge did not need to recite every factor in CPR r3.9(1), but had to explain enough for the decision to be understood and show that proportionality had been assessed.
5. The Employment Judge’s brief reasoning did not identify which replies were inadequate, whether the relevant document was considered as a whole, or whether the proportionality safeguard had been separately applied. The issues of non-compliance and relief were remitted to a different Employment Judge for fresh consideration on the evidence and argument placed before that tribunal.

• Employment Appeal Tribunal: The appeal against the Employment Tribunal decision dated 18 February 2011 was allowed. The questions of non-compliance and relief were remitted to a differently constituted Employment Tribunal.