Harris v Academies Enterprise Trust

In the Employment Tribunal, a breach of an order may justify strike-out, but it does not make strike-out automatically proportionate. The Tribunal must apply the Employment Tribunals Rules and the principles governing strike-out, including the requirement to consider the consequences of the breach for both parties and whether a fair hearing remains possible.

The Civil Procedure Rules approach after Mitchell is not automatically imported into Employment Tribunal proceedings. The overriding objective nevertheless includes wider institutional justice, including timely hearings, reasonable use of Tribunal resources and the avoidance of disproportionate delay. An appeal against a discretionary case-management decision succeeds only for an error of law, or a decision that is perverse in the strict sense.

The Claimant, a teacher bringing claims including whistleblowing detriment, disability discrimination, victimisation and harassment, appealed against an Employment Tribunal’s refusal to strike out the Respondents’ response.

The Respondents had failed to exchange witness statements by the ordered date. The Employment Judge found the breach unreasonable, intentional and contumelious, but concluded that strike-out would cause greater prejudice to individual Respondents who might face findings of discrimination without an opportunity to answer the allegations. The Claimant also challenged the refusal to postpone the hearing and the Judge’s treatment of the Respondents’ solicitor’s conduct.

The central issues were the correct approach to proportionality under rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the relevance of the post-Mitchell civil procedure approach, and the permissible limits of appellate review.

1. Appeal dismissed. The Employment Judge had found that the Respondents’ conduct was unreasonable and breached Tribunal orders. Those findings satisfied the relevant threshold under rule 37(1)(b) and (c), but did not determine whether strike-out was proportionate.

2. The applicable approach was that in Blockbuster Entertainment Ltd v James. Strike-out is a draconian power. The Tribunal must consider whether the relevant conditions are met and then whether strike-out is a proportionate response in the circumstances. Proportionality is not merely a consequence of establishing deliberate or persistent procedural default.

3. The Civil Procedure Rules do not apply to Employment Tribunal proceedings in the same way as they apply in the civil courts. The 2013 Employment Tribunal Rules deliberately contain a different overriding objective and do not reproduce the civil rules’ express emphasis on proportionate cost, allocation of court resources and enforcement of compliance. The principles in Mitchell may provide insight into the wider meaning of justice, but Employment Judges are not required to apply an identical or closely analogous test.

4. Justice under the Employment Tribunal Rules may include ensuring that one case does not consume a disproportionate share of Tribunal resources, cause other cases to be adjourned or prevent them from being heard within a reasonable time. Tribunals may use case-management powers to control evidence, secure prompt hearings and, where necessary, exclude marginally relevant material.

5. The Judge was entitled to balance the Claimant’s illness and the prejudice caused by late disclosure against the serious prejudice to individual Respondents who might be condemned without an opportunity to answer allegations of discrimination. The evidence entitled him to treat the default as the solicitor’s fault rather than conduct instructed by the individual Respondents.

6. An appellate court may not substitute its own choice merely because it would have weighed the prejudice differently. The decision was open to the Employment Judge and was not perverse. The related challenges concerning correspondence and postponement disclosed no error of law.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s refusal to strike out the Respondents’ response dismissed.
• Employment Tribunal: found unreasonable and contumelious non-compliance with an order to exchange witness statements, but refused strike-out and made case-management and payment orders.