Pinnock v Birmingham City Council & Anor

Relief from an automatic strike-out for breach of an unless order may properly be refused where a party deliberately persists in non-compliance after being given an opportunity to remedy it, and the default prevents a fair hearing. Strike-out remains a draconian sanction, particularly in fact-sensitive discrimination claims, but the need for a fair trial requires timely exchange of the evidence to be called.

An appellate tribunal will interfere with a discretionary refusal of relief only in limited circumstances. 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 including unfair dismissal, religious and disability discrimination, protected-disclosure detriment, and monetary claims. The Tribunal made an unless order under Rule 13(2) of the 2004 ET Rules requiring witness statements to be exchanged by a specified date.

After the Claimant failed to comply, the Employment Judge refused a review of the order and refused relief from the resulting automatic strike-out. The Claimant also challenged a stay decision, a costs order, and alleged apparent bias. Following paper-sift refusals, the combined appeals proceeded to an oral preliminary hearing under Rule 3(10).

The central issues were whether refusal of relief from sanction was arguably erroneous and whether the bias allegation was reasonably arguable.

1. The combined appeals were dismissed at the preliminary-hearing stage. The refusal of relief from the automatic strike-out was not merely permissible: on the facts, the Employment Judge had no realistic alternative after the Claimant consciously declined a final opportunity to exchange witness statements.

2. The unless order under Rule 13(2) of the 2004 ET Rules was properly made in light of the Claimant's earlier non-compliance. The review application had no merit. The relevant issue was whether a lesser sanction could have allowed a full hearing to proceed.

3. Each party should see the witness-statement evidence to be called by the other at trial. Without that exchange, a fair hearing cannot take place. The Respondent's five-minute delay in sending its statements did not excuse the Claimant's continued total non-compliance. Nor did the unresolved disclosure appeal. The Claimant had deliberately chosen not to serve her statements and never did so.

4. The Tribunal recognised that strike-out is draconian and that discrimination claims ordinarily should be determined on evidence. Those considerations did not assist a party whose persistent failure to cooperate made a fair hearing impossible. The purpose of procedural sanctions is to secure compliance so that a fair trial can take place.

5. Applying the apparent-bias test in Porter v Magill, [2002] 2 AC 357, the allegations were not arguable. A fair-minded and informed observer would not find a real possibility of bias. The Employment Judge had dealt professionally and fairly with a difficult case-management situation.

6. The stay challenge had become moot. The appeal against the £180 costs order was dismissed.

• Employment Appeal Tribunal: At a combined preliminary hearing, dismissed the Claimant's appeals against the Employment Judge's case-management, relief-from-sanction, costs, and bias decisions.
• Employment Tribunal: The Employment Judge made an unless order under Rule 13(2) of the 2004 ET Rules, which automatically struck out the claims upon non-compliance; he later refused review and relief from sanction, and made a costs order.