Rogers v Department for Business Industry and Skills

An unless order which purports to impose automatic strike-out must state clearly and precisely what will occur on non-compliance. Wording that a claim will be struck out, without specifying whether and when that consequence follows, is insufficient for a draconian automatic sanction.

Where compliance is genuinely disputed, procedural fairness requires notice that the issue will be determined. A claim should not ordinarily be struck out as having no reasonable prospects of success where central facts remain disputed and require evidence, particularly where the employer bears the initial burden of showing the reason for dismissal.

The claimant appealed against decisions made at a pre-hearing review in the London Central Employment Tribunal on 11 January 2012. The Employment Judge held that discrimination claims had automatically been struck out for non-compliance with an unless order, held them out of time in any event, and struck out the unfair-dismissal claim as having no reasonable prospects of success.

The claimant contended that the unless order was unclear, that the dismissal and the performance-improvement process gave rise to a timely discrimination claim, and that disputed facts prevented strike-out of the unfair-dismissal claim.

1. Appeal allowed. The Tribunal's orders of 11 January 2012 were set aside and the matter was remitted to the London Central Employment Tribunal.

2. The unless order did not satisfy the requirements for an automatic strike-out under Rule 13(2). It said that all or part of the claims will be struck out, rather than clearly stating that an identified claim shall be struck out on non-compliance. It therefore left the consequence of non-compliance ambiguous. Given the draconian effect of an unless order, its sanction must be expressed exactly and clearly.

3. There was also a real dispute over whether the claimant had complied in substance. The notice for the pre-hearing review did not identify compliance with the unless order as an issue. Whether the hearing was treated as one for discretionary strike-out, for which Rule 18(6) required notice, or as a hearing to determine compliance, fairness required notice that the issue would be decided.

4. The ruling that the discrimination claims were out of time could not stand. Read generously, the pleadings arguably alleged that dismissal was the culmination of a discriminatory performance-improvement process, or that the process was continuing until dismissal. The Tribunal also failed to consider whether an extension would be just and equitable.

5. The unfair-dismissal claim should not have been struck out. The Employment Judge had resolved matters drawn largely from the respondent's pleading without hearing evidence from the dismissing officer. Central facts were disputed, and the respondent retained the initial burden of showing the reason for dismissal. Applying Ezsias, this was not the exceptional case in which a factual dispute could properly be determined by strike-out.

The remitted Tribunal should clarify and confine the claims, consider any deposit-order application, and list the matter for a substantive hearing as appropriate.

• Employment Appeal Tribunal: appeal allowed; the London Central Employment Tribunal's orders of 11 January 2012 were set aside and the proceedings remitted.
• Employment Tribunal: at a pre-hearing review, the discrimination claims were treated as automatically struck out, alternatively held out of time, and the unfair-dismissal claim was struck out for having no reasonable prospects of success.