Croce v Centerwest London (Buses) & Ors (Practice and Procedure)

An appellate court will not interfere with a discretionary refusal of relief from an unless-order sanction merely because it might have reached a different conclusion. The decision must be made rationally, fairly and for the statutory purpose, taking relevant matters into account and excluding irrelevant matters.

The factors in CPR 3.9 may be a useful checklist, but an Employment Tribunal is not required to address every factor before exercising its discretion. It may instead determine the central issues.

The claimant brought disability-discrimination proceedings arising from his employment as a bus driver. Disability was disputed, and the Employment Tribunal directed a jointly instructed medical expert to assess the effect of his conditions on normal day-to-day activities.

The claimant did not attend the agreed appointment. He asserted illness, but failed to comply with an unless order requiring medical confirmation that he had been too ill to attend and an explanation why the claim should not be struck out. His claim was therefore automatically struck out.

Employment Judge Mahoney refused relief from that sanction. The claimant appealed on the confined ground that a GP letter dated before the appointment provided a good explanation for his non-attendance.

1. Appeal dismissed. The Employment Judge made no error of law in refusing relief from the sanction imposed by the unless order.

2. The governing approach was that stated in Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civil 1190 and 1214. A discretionary decision must be reached judicially, rationally and consistently with fairness, justice and the purpose of the relevant legislation. It must take account of relevant circumstances and disregard irrelevant ones. An appellate court cannot interfere simply because another conclusion might also have been open.

3. The GP letter recorded only what the claimant said about his inability to travel by public transport. It did not medically confirm that he was unable to attend the examination. The Employment Judge was entitled to treat it as insufficient evidence of a good explanation for non-attendance, notwithstanding the claimant’s complaints about his GP.

4. The Judge had mistakenly treated the checklist of factors derived from CPR 3.9 and discussed in Maresca v Motor Insurance Repair Research Centre as compulsory. Neary did not make that checklist obligatory. It is sufficient for an Employment Tribunal to deal with the central issues, although use of the checklist remains permissible.

5. On the only ground permitted to proceed, the refusal of relief was a lawful exercise of discretion. The automatic strike-out consequently remained effective.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against refusal of relief from the automatic strike-out sanction.

• Watford Employment Tribunal: the claim stood struck out on 26 April 2011 following non-compliance with an unless order. Employment Judge Mahoney refused relief from sanction on 1 July 2011.