Voralia (t/a RTS Textiles Recyclers) v Osowski

An Employment Tribunal may strike out a response for failure to comply with a case-management disclosure order where the evidence permits the inference of a deliberate and persistent breach. Express use of those words is unnecessary if that conclusion inevitably follows from the facts.

The Tribunal must also assess proportionality. Strike-out may be proportionate where the order is important to the issues, the default is unexplained, compliance is not forthcoming, and allowing the defaulting party to proceed would prejudice the other party. A lesser costs or preparation-time order need not be preferred where it is unavailable or inadequate.

The claimant, a driver, brought claims for unfair dismissal and money claims. He alleged that he had been dismissed after reporting alleged tax, National Insurance, minimum-wage and working-time irregularities.

The Employment Tribunal ordered the respondent employer to disclose records of tax and National Insurance payments, forms P11D and accountants' verification of payments to HMRC. The respondent did not comply. At the resumed hearing it gave no adequate explanation, sought no adjournment and did not indicate that compliant documents would be produced.

The Employment Tribunal struck out the ET3 response and debarred the respondent from further participation. The respondent appealed, contending that the Tribunal had not applied the guidance in Blockbuster Entertainment Ltd v James [2006] IRLR 630 and that strike-out was disproportionate.

1. Appeal dismissed. The Employment Tribunal made no error of law and did not wrongly exercise its discretion in striking out the response.

2. The disclosure required by the order went to the heart of the possible illegality issue and was relevant to whether the claimant had made disclosures in good faith for the purposes of Employment Rights Act 1996, section 43B(1)(b) and section 43C(1).

3. The respondent admitted non-compliance with the disclosure order. More than two months had passed since it was made and many weeks since the compliance deadline. The respondent neither sought an adjournment nor said when it would comply. Letters sent to its representative did not excuse the respondent itself from producing documents in its possession. On those facts, the Employment Tribunal inevitably treated the breach as deliberate and persistent. It was immaterial that the Tribunal had not used those exact words.

4. The Tribunal was entitled to find the condition in rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 satisfied. Applying the guidance in Blockbuster Entertainment Ltd v James [2006] IRLR 630, it also properly treated proportionality as a separate issue.

5. Strike-out was proportionate. The respondent had deliberately disobeyed an important order, offered no good excuse and gave no indication that compliance would follow. Proceeding despite the default would expose the claimant to the prejudice which the disclosure order was designed to avoid. A costs order was unavailable because the claimant was unrepresented, and a preparation-time order was not an adequate reason to regard strike-out as disproportionate.

• Employment Appeal Tribunal: Dismissed the employer's appeal and upheld the Employment Tribunal's order striking out its response.
• Employment Tribunal: Struck out the employer's ET3 response and debarred it from further participation after non-compliance with disclosure orders.