Enamejewa v British Gas Trading Ltd & Anor

On an application under Rule 38(2), an Employment Tribunal must make a broad assessment of whether setting aside an unless order is in the interests of justice. The inquiry is not confined to the circumstances that led to the order. It must also take account of material events occurring afterwards.

Relevant matters may include the reason for, and deliberateness of, the default, its seriousness, prejudice, whether a fair trial remains possible, and the importance of compliance with unless orders. No factor is necessarily decisive. The difference between the interests-of-justice wording in Rule 38(2) and Rule 70 does not alter the substantive test.

The claimant brought claims of wrongful and unfair dismissal and race discrimination against his employers. Following delays and disputes over the trial bundle, the Employment Tribunal made an unless order requiring exchange of witness statements by noon on 29 November 2013. The claimant served his statement eight minutes late. His claims were consequently dismissed automatically.

Employment Judge Lewzey refused to set aside the order, considering the application under Rule 70 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. The claimant appealed. The central issue was the proper approach to an application to set aside an unless order under Rule 38(2), and whether the Judge had applied it.

1. Appeal allowed. The Employment Judge erred by addressing the application under Rule 70 rather than Rule 38. That error was immaterial because the difference between whether relief is necessary in the interests of justice and whether it is in the interests of justice makes no substantive difference: a step which justice requires in furtherance of the overriding objective is also necessary.

2. The material error lay in the apparent confinement of the inquiry to whether the unless order had originally been justified. Under Rule 38(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the question concerns setting aside the unless order, but the interests-of-justice assessment may and should include relevant events after it was made. A later incapacity or power failure might therefore justify revocation even though the original order was properly made.

3. The assessment is substantially akin to deciding relief from the sanction. Applying the approach in Thind v Salvesen Logistics Ltd UKEAT/0487/09/DA, relevant factors include the reason for the breach, whether it was deliberate, its seriousness, prejudice to the other party, whether a fair trial remains possible, and the importance of unless orders. The factors cannot be exhaustively categorised and none is automatically determinative.

4. The eight-minute delay could nevertheless be significant and serious because, by operation of the unless order, it automatically vacated the hearing and caused the employers unnecessary expense and difficulty. The Tribunal’s reasoning before its paragraph 28 could have supported refusal, but the EAT could not be certain that the Judge would have reached the same conclusion under the correct approach.

5. The refusal to set aside, and the costs order, were set aside and remitted to Employment Judge Lewzey. Remittal to the same Judge was appropriate: the allegations against her were unfounded, and unfounded allegations must not enable a litigant to select a different judge.

• Employment Appeal Tribunal: allowed the appeal, set aside the refusal to revoke the unless order, and remitted the substantive and costs issues to Employment Judge Lewzey.
• Employment Tribunal: Employment Judge Lewzey refused the claimant's application to set aside the unless order. The claimant's claims therefore remained automatically dismissed.