Vanderpuye v Telefonica O2 UK

Striking out for breach of an unless order is an extreme step, but it may be proportionate where there is a sustained history of non-compliance, material disclosure remains outstanding, and the party has been given a final opportunity to comply. The Employment Appeal Tribunal will not reassess factual findings about receipt of an order or the adequacy of compliance unless perversity, bias, or another error of law is shown.

The approach in Abegaze [2009] EWCA Civ 96 was correctly applied: strike-out should ordinarily be preceded by an unless order, but a properly framed order may result in automatic strike-out when its conditions are not met.

The claimant appealed from decisions of the Leeds Employment Tribunal striking out his disability discrimination claim under an unless order and refusing two applications to review that result. He contended that he had not received the unless order until after the compliance date and that, in any event, he had complied or substantially complied with the underlying directions.

The outstanding directions concerned an accessible account or transcript of a recorded disciplinary meeting and medical material relevant to the asserted disability. The Employment Judges did not accept the claimant's account of non-receipt and found that the required material had not been supplied. The central issues on appeal were whether those findings and the resulting strike-out were legally erroneous or disproportionate.

1. Appeal dismissed. The Employment Judges were entitled to find that the claimant had not complied, or adequately complied, with the unless order. Their finding that his account of non-receipt of the order was not to be believed was a factual assessment for the Employment Tribunal. The EAT could not substitute its own assessment in the absence of perversity or bias.
2. Proportionality. Strike-out is a draconian and serious measure. However, it was proportionate here. There had been repeated failures to comply with case-management directions, no significant progress despite extensive judicial involvement, and outstanding material central to the disability claim. The respondent was entitled to prepare its defence in an orderly, timely and proportionate manner, particularly given the prospective unavailability of its principal witness.
3. Unless order. The Employment Judge had not imposed immediate strike-out. She gave the claimant a final opportunity to comply through an unless order, after considering the history of default and the need for the medical evidence. Its conditions were not met, so strike-out followed automatically.
4. Authority. The Tribunal had applied the approach in Abegaze [2009] EWCA Civ 96. It recognised that strike-out is exceptional and that an unless order should ordinarily precede it. On the facts, the unless order was a true last resort and there was no error in the application of the relevant rules or in the exercise of discretion.

• Employment Appeal Tribunal: the claimant's appeals against the strike-out and refusal of review were dismissed.
• Employment Tribunal (Leeds): an unless order required compliance by 19 November 2010. Following non-compliance, the disability claim stood struck out on 26 November 2010. Two review applications were refused.