Johnson v United Kingdom Border Agency

An Employment Tribunal may strike out a claim for unreasonable conduct or non-compliance with orders only after considering whether a fair hearing remains possible and whether striking out is a proportionate response. It must consider whether a less drastic measure can fairly meet the problem. Where the claimant has persistently failed to engage, no realistic hearing can proceed, and a further adjournment has properly been rejected, striking out may be proportionate.

Under rule 19(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, oral notice is sufficient if the party is expressly told what order will be considered and when. A costs order, however, cannot be made under rule 38(9) unless the party has notice of the costs application and a proper opportunity to oppose it.

The claimant brought claims of unfair dismissal, race discrimination, victimisation and harassment against her former employer. The Employment Tribunal at London South struck out the claims after she failed to produce witness evidence, did not attend on successive hearing days, and did not engage with alternatives proposed to enable the hearing to proceed. It also ordered her to pay £10,000 costs.

She appealed against the strike-out and costs orders. The central issues were whether she had the required opportunity to oppose strike-out, whether strike-out was proportionate, and whether she had notice and an opportunity to oppose the costs application.

1. Appeal allowed in part. The appeal against strike-out was dismissed. The appeal against the £10,000 costs order was allowed, and the costs issue was remitted to the same Employment Tribunal.

2. The claimant had been given a proper oral opportunity under rule 19(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to oppose strike-out. Before leaving the hearing on 4 June, she was expressly told that, if the substantive hearing could not proceed, the respondent's application to strike out for unreasonable conduct would be heard. She knew both the nature and timing of the proposed order. Rule 19(1) did not require written notice or notice of every ground relied on.

3. The Tribunal applied the proper approach to strike-out stated in Blockbuster Video v James. It considered both whether a fair trial remained possible and whether strike-out was proportionate. By 6 June, the claimant did not intend to participate during the allotted hearing period, had supplied no witness statement, and relevant respondent witnesses were no longer readily available. Proceeding in her absence was unrealistic. A further adjournment was the only realistic alternative, but that course had recently been refused for good reason. The Tribunal was entitled to find that there was no lesser fair sanction and that strike-out was proportionate.

4. The costs order breached rule 38(9). Unlike the prospective strike-out application, the claimant had not been told that a costs application would be made or when it would be heard. Earlier correspondence warning of possible costs did not give notice of the application itself. She was entitled to know that a substantial costs order might be sought and to have an opportunity to make representations. The costs order could not stand.

5. The Employment Tribunal had not erred merely by declining a more detailed assessment where the application was capped at £10,000 and the underlying costs plainly exceeded that sum. On remission, however, it must hear and independently consider any reasoned objections made by the claimant.

• Employment Appeal Tribunal: appeal allowed only as to costs. The strike-out was upheld; the costs order was set aside and remitted to the same Employment Tribunal.
• Employment Tribunal, London South: on 14 June 2013, struck out the claimant's unfair-dismissal and discrimination claims and ordered her to pay £10,000 costs.