Riniker v City and Islington College Corp

An Employment Tribunal may make a valid Unless Order on its own initiative without first hearing the affected party where the Employment Tribunal Rules of Procedure 2004 permit that course. A party who relies on an application to vary must ensure that it is received before the compliance deadline. Even if an in-time application might suspend or alter the order, a late application cannot do so. Once a valid Unless Order expires without compliance, the strike-out takes effect automatically and the appropriate challenge is by review seeking relief from the sanction. A challenge to a fresh review decision is a separate appellate matter and cannot generally be introduced by amending an appeal against the original decision.

Ursula Riniker, a part-time German teacher, brought various Employment Tribunal claims against City and Islington College Corporation following her dismissal. After she failed to provide a schedule of loss and list of relevant documents, Employment Judge Postle made an Unless Order requiring compliance by midday on 18 June 2008, failing which the claim would be struck out. The claim was struck out when the deadline passed.

The Employment Appeal Tribunal, in proceedings cited as UKEAT/0495/08/CEA, dismissed the appeal against the strike-out order. The appellant sought permission to appeal to the Court of Appeal and also challenged several procedural orders. The central issues were whether the Unless Order was validly made without a hearing, whether an application to vary could amount to compliance or suspend the order, and whether the appeal notice could be amended to challenge a later review decision.

Permission to appeal was refused. Per Elias LJ, the challenges to the other orders did not raise a serious issue. They concerned separate Employment Tribunal decisions, required separate appellate notices, or were premature, out of time, and without a realistic prospect of success.

1. The Unless Order was valid. Rules 13(1)-(2) and 19.1 of the Employment Tribunal Rules of Procedure 2004 permitted an employment judge to make such an order on the judge’s own initiative and without a prior hearing. The absence of a prior opportunity to make representations did not invalidate the order because the affected party could apply to vary it or extend time. The signature objection also failed: rule 10(8) required the order to be signed by a judge, but did not require the copy sent to the parties to bear the judge’s signature.
2. The court did not need to determine definitively whether an application to vary, made in time, could itself amount to compliance or place the order in abeyance. Even on the appellant’s premise, the application had to be received before the deadline. It arrived after midday on 18 June 2008. The valid order therefore took effect automatically, leaving no discretion for the Employment Judge at that stage. The effective route was a review application seeking relief from the sanction, but the attempt to reopen the matter on appeal was too late.
3. The amendment sought to introduce a challenge to a fresh review decision. It was therefore properly treated as a separate appeal for procedural and time-limit purposes. Opara v Partnerships in Care Ltd EAT/0368/09 was distinguishable: the amendment there was a pragmatic course adopted with the parties’ consent in materially different circumstances. A judge’s exercise of discretion in that case did not require the same result here.

1. Court of Appeal (Civil Division) On 27 January 2012, Elias LJ refused permission to appeal from the Employment Appeal Tribunal’s order.
2. Employment Appeal Tribunal His Honour Judge Richardson dismissed the appeal on 23 June 2010 against Employment Judge Postle’s strike-out order, in proceedings cited as UKEAT/0495/08/CEA.
3. Employment Tribunal Employment Judge Postle struck out the claim on 18 June 2008 after non-compliance with the Unless Order. A later review confirmed the strike-out, but the review decision was not the decision under appeal before the Employment Appeal Tribunal.