Pinnock v Birmingham City Council & Anor

An Employment Tribunal may refuse relief from the automatic strike-out consequence of an unless order where a party has deliberately failed to exchange witness statements, including after being given a final opportunity to remedy the breach. The Tribunal should assess the seriousness and responsibility for the default, resulting disruption or prejudice, and whether a fair hearing remains possible. Strike-out is a draconian measure and discrimination claims will ordinarily be decided on evidence, but those considerations cannot permit proceedings to continue where the claimant’s non-co-operation prevents a fair trial.

An allegation of apparent bias fails unless the fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimant brought Employment Tribunal claims for unfair dismissal, religious and disability discrimination, protected-disclosure detriment, and money claims against the local authority and the governing body of her former school.

Following earlier non-compliance with case-management directions, Employment Judge Goodier made an unless order requiring exchange of witness statements. The claimant did not serve her statements, despite an opportunity at a later pre-hearing review to do so. The Employment Judge refused relief from sanction, declined to review the unless order, refused a stay, and made a costs order.

The claimant appealed. At a combined preliminary hearing following the Rule 3 process, the Employment Appeal Tribunal considered whether the challenges to relief from sanction, apparent bias, the stay, and costs were reasonably arguable.

1. Appeals dismissed. The Employment Judge permissibly refused relief from the automatic strike-out resulting from the claimant’s breach of the unless order. The review application was without merit.

2. In deciding whether strike-out or relief from its consequences is appropriate, the Tribunal must consider the gravity of the default, who was responsible for it, the resulting disruption, unfairness or prejudice, and whether a fair hearing remains possible. The purpose of a procedural sanction is to secure compliance so that both parties can have a fair trial. Although strike-out is draconian and discrimination claims are ordinarily determined on evidence, those considerations did not assist this claimant.

3. The unless order under Rule 13(2) of the 2004 ET Rules was properly made in view of the prior history of non-compliance. The respondent’s five-minute delay in sending its statements did not excuse the claimant’s continuing total non-compliance. The claimant’s representative deliberately chose not to serve the claimant’s witness statements, including when offered a final opportunity at the pre-hearing review.

4. Exchange of the oral evidence to be called at trial was essential to a fair hearing. The outstanding disclosure appeal and a possible adjournment did not cure the impasse. The claimant’s refusal to serve the statements prevented a fair hearing, and the Employment Judge had no realistic lesser sanction available.

5. Applying Porter v Magill, the apparent-bias ground was unarguable. The evidence did not support a conclusion by the fair-minded and informed observer that there was a real possibility of bias. The Employment Judge had dealt professionally and fairly with a difficult case-management problem.

6. The stay issue was moot. The costs appeal was also dismissed.

• Employment Appeal Tribunal: At a combined preliminary hearing, dismissed both appeals after concluding that none of the strike-out, relief-from-sanction, apparent-bias, stay, or costs grounds was reasonably arguable.

• Employment Tribunal, Birmingham: Employment Judge Goodier made an unless order following a case-management discussion in December 2012. At a pre-hearing review in May 2013, he refused review and relief from sanction after non-compliance with the order; he had also refused a stay and awarded costs.