Cunningham v Aurora Kendrick James Ltd (Practice and Procedure)

Failure to comply with an employment tribunal unless order results in automatic strike-out under rule 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations. At that stage the Employment Judge has no discretion and must enter judgment.

Relief from that sanction must first be sought from the Employment Tribunal. An appeal confined to the consequential automatic judgment cannot provide relief where no such application was made. A late amendment seeking to challenge earlier orders will be refused where it was not made promptly, the original appeal was already out of time, and no grounds justify an extension.

The Claimant brought claims of constructive unfair dismissal, disability discrimination and breach of contract. The Ashford Employment Tribunal made an unless order requiring service of his witness statement by 11 October 2011. He did not comply, and the Employment Judge entered judgment striking out the claims.

The Claimant appealed only against that consequential judgment. He had not sought relief from the sanction in the Employment Tribunal. At the appeal hearing, he also sought permission to amend his notice of appeal to challenge earlier orders refusing to revoke the unless order. The central issues were whether the automatic strike-out could be impugned on that appeal and whether the proposed late amendment should be permitted.

1. Appeal dismissed. The Claimant admittedly failed to serve his witness statement by the extended deadline in the unless order. Rule 13(2) therefore produced an automatic strike-out. The Employment Judge had no discretion when entering the consequential judgment and was bound to do so.

2. The appropriate route for relief was an application to the Employment Tribunal. The Tribunal could consider relief from sanction on application, or of its own motion, including where compliance was disputed, the unless order was revoked, or time for compliance was extended. The Judge did not decide whether this was technically by review or under rule 10(2), but held that no such application had been made here. An appeal directed solely to the automatic judgment could not supply that missing step.

3. The application to amend the notice of appeal was refused. It was made only at the hearing and not as soon as reasonably practicable. Moreover, when the original notice was lodged, any appeal against the orders of 3 and 7 October 2011 was already out of time. Applying the principles in United Arab Emirates v Abdelghafar, [1995] ICR 65, Aziz v Bethnal Green City Challenge Co Ltd, [2000] IRLR 111, and Jurkowska v Hlmad Ltd, [2008] ICR 841, no good excuse or basis for an extension was shown.

4. The appeal against the judgment of 25 October 2011 was accordingly hopeless and was dismissed.

• Employment Appeal Tribunal: dismissed the appeal against the automatic strike-out judgment and refused permission to amend the notice of appeal.
• Employment Tribunal, Ashford: entered judgment striking out the claims after the Claimant failed to comply with an unless order requiring service of a witness statement.