Abusabib & Anor v Taddese

The Employment Appeal Tribunal has jurisdiction to grant relief from sanctions. Where helpful, it may apply Civil Procedure Rules 1998, rule 3.9, by analogy.

Failure to file a draft ET3 with evidence required by Practice Direction 16 may be a venial error where the evidence clearly identifies the proposed defence. Relief may be granted after considering the circumstances of the default, the stage of the appeal, likely delay, prejudice, the overriding objective and the apparent merits. At the threshold stage, relief should not be refused where the proposed point cannot be said to have no merit.

The Respondents appealed against a Deputy Registrar’s refusal to grant relief from sanctions. The underlying Employment Tribunal proceedings resulted in substantial awards for discrimination, harassment and failure to provide written particulars. The Respondents sought to raise issues concerning service and diplomatic immunity.

For validation of the Notice of Appeal, Practice Direction 16 required witness evidence and a draft ET3. The evidence and papers were filed in time, but the draft ET3 was filed two days late. The central issues were whether the EAT could grant relief, whether the Deputy Registrar had applied the correct approach, and whether the proposed diplomatic-immunity point could properly be regarded as without merit.

1. Appeal allowed. The EAT had jurisdiction to grant relief from sanctions. Although that jurisdiction differs from the jurisdiction of the Employment Tribunal, CPR 3.9 could be applied by analogy where helpful, consistently with the approach in Roberts v Carling.

2. The Deputy Registrar erred in law by finding non-compliance with the unless order without addressing the relevant CPR 3.9 considerations. The appeal was heard afresh, and the Respondents’ solicitor’s explanation was accepted: he had believed that all the papers had been filed together, while the draft ET3 was filed two days later.

3. The relevant circumstances included that the default was attributable to the legal representative, the appeal was at an early sifting stage, no hearing date was in focus, substantial delay was unlikely, and the effect of refusal would be significant for both parties. The substantial sum awarded by the Tribunal and the absence of a trial on the essential diplomatic-immunity issue were also material.

4. Under Practice Direction 16, the evidence sufficiently set out the gist of the proposed defence. The draft ET3 added little to that evidence. Its omission was therefore a venial error, and the overriding objective favoured allowing a short period for valid service.

5. Applying the approach in Aziz, the apparent merits of the proposed appeal were relevant. In light of the authorities concerning diplomatic immunity, including P v P and the Diplomatic Privileges Act 1964, the point could not be said at that stage to have no merit. Relief from sanctions was accordingly granted.

• Employment Appeal Tribunal: allowed the appeal from the Deputy Registrar’s refusal of relief from sanctions. The Respondents were allowed a short period to serve the draft ET3 validly on the Registrar.