Mitie Cleanng And Environmental Services Ltd v Challinor

A decision whether to review and revoke a strike-out is a discretionary decision under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The discretion is unfettered and requires regard to the circumstances of the individual claim.

An appellate tribunal may intervene only if the Employment Judge took account of an irrelevant matter, omitted a relevant matter, or reached a conclusion which no reasonable Employment Judge could have reached. Serious and unexplained failures by solicitors to progress a claim may strongly support refusal of a review. They do not, however, make revocation perverse if it remained within the range of reasonable discretionary responses.

The claimant brought an age-discrimination claim. After his solicitors repeatedly failed to answer correspondence and strike-out warnings concerning a transfer request, the Employment Tribunal struck out the claim for failure actively to pursue it under Rule 18(7)(d).

The claimant sought a review at the end of the permitted period. At the review hearing, the Employment Judge revoked the strike-out, notwithstanding serious failures by the claimant's solicitors. The employer appealed, contending that the decision was perverse and that the claim should remain struck out.

The central issue was whether the revocation of the strike-out was a discretionary decision which no reasonable Employment Judge could have made.

1. Appeal dismissed. The Employment Judge's revocation of the strike-out was a discretionary decision under Rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

2. The discretion was unfettered. As indicated in Rolls-Royce Plc v Riddle, a wide range of circumstances may require consideration according to the features of the particular claim. The appellate tribunal could interfere only if the Employment Judge had relied on an irrelevant factor, failed to take account of a relevant factor, or reached a decision which no reasonable Employment Judge could have reached.

3. The solicitors' failures were serious and distinctly unsatisfactory. Illness affecting the individual solicitor did not reduce the firm's responsibility to ensure that its client's claim was pursued effectively and efficiently. The court also observed that the solicitors should have recognised the conflict between their own potential liability and the claimant's interests.

4. The Employment Judge had recognised the failure actively to pursue the claim, the extent of the default and the resulting delay. He had proceeded on the correct basis that no letter dated 8 June 2011 had been sent. Although many, and perhaps most, Employment Judges would have refused a review, that did not establish that revocation fell outside the range of reasonable decisions.

5. Accordingly, the employer did not establish perversity or any other reviewable error in the exercise of discretion. The appeal was refused.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Judge's revocation of the strike-out was upheld.
• Employment Tribunal: The claim was struck out for failure actively to pursue it under Rule 18(7)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Following a review hearing, Employment Judge Gall revoked that strike-out in a judgment registered on 9 September 2011.