Murray v Standard Life (Practice and Procedure : Review)

An Employment Tribunal considering whether to review a strike-out following an unless order must make a broad, fact-sensitive assessment of the interests of justice. It must apply its correct self-direction to all material circumstances, including the adequacy of existing pleadings, the reason and seriousness of any default, prejudice, and whether a fair trial remains possible.

Agreement to an order is not conclusive on a later review. Nor may a tribunal conclude that a fair trial is impossible without reasons and an evidential basis. Where the material before the Appeal Tribunal establishes that the respondent has sufficient notice of the case and a fair hearing can take place, the Appeal Tribunal may itself review the strike-out and remit the claims for a full hearing.

The Claimant brought claims of disability discrimination and unfair dismissal. At the start of a listed full hearing, the Employment Tribunal sought clarification of her case and made an unless order requiring answers within 24 hours. It later held that the order had not been complied with and struck out the claims.

The Employment Tribunal, sitting as a full tribunal, refused the Claimant’s application for review under rule 35(3) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations. The Claimant appealed, contending that the review process was incompetent and, in any event, that the Tribunal had failed properly to consider whether the interests of justice required relief from the strike-out.

1. Appeal allowed. The Employment Tribunal was entitled to consider the preliminary review question as a full tribunal. Rule 35(3) permitted an Employment Judge to decide the matter alone; it did not prohibit the whole tribunal from sitting. Any procedural irregularity would in any event have been immaterial, since the Claimant had the benefit of consideration by all three members.

2. The Tribunal nevertheless erred in law in refusing review. It correctly identified the broad interests-of-justice approach explained in Thind, but its reasons did not show that it applied that approach to all material matters. It treated the Claimant’s solicitor’s agreement to the unless order as effectively decisive, rather than considering whether the order was needed in light of the existing pleadings and earlier answers.

3. The Tribunal did not address the significance of a full hearing having been fixed without an objection that the Respondent lacked notice of the case to meet. It also failed to engage adequately with the apparent confusion in the Claimant’s representation and with the submission that the pleadings and both sets of answers, read together, were sufficient. Failures by a representative ordinarily bind the litigant, but they may form part of the overall circumstances relevant to a review.

4. The conclusion that no fair trial was possible was unsupported. Delay could cause prejudice, but the Tribunal gave no reason why the Respondent, which had prepared for the full hearing, would not have relevant records and witness material available.

5. Exercising its power under section 35 of the Employment Tribunals Act 1996, the Appeal Tribunal reviewed the strike-out itself. The Respondent had sufficient notice of the case for a full hearing. The strike-out was reviewed and the claims were remitted for a full hearing before any three-person Employment Tribunal. The existing pleadings and answers to both unless orders were to be treated as complete, subject only to a fresh request concerning a new point.

• Employment Appeal Tribunal: Allowed the appeal, reviewed the strike-out decision, and remitted the claims for a full hearing.
• Employment Tribunal: Refused the Claimant’s review application under rule 35(3) on 16 April 2013, following a strike-out for non-compliance with an unless order recorded in a judgment dated 9 October 2012.