Hylton v Royal Mail Group Ltd (Practice and Procedure)

Relief from the automatic strike-out caused by non-compliance with an unless order depends on the interests of justice in all the circumstances. Case-management orders requiring proper particulars serve both parties’ entitlement to a fair hearing. A respondent must know the case to meet, and a tribunal cannot fairly adjudicate an unparticularised claim.

Although relief will usually be appropriate where the required information has subsequently been supplied, that approach does not assist a claimant whose material still fails to clarify the claim. The claimant seeking relief must provide clear evidence both explaining past non-compliance and showing a realistic prospect that a necessary future hearing can proceed effectively. Proportionality may include the effect on other persons affected by serious but unspecified allegations.

The claimant, who remained employed by the respondent, presented claims of race and disability discrimination. Her ET1 made serious but wholly general allegations and did not identify the allegedly discriminatory acts.

The Employment Tribunal ordered particulars in numbered chronological form. After two late postponement applications linked to anxiety and panic attacks, it made an unless order requiring compliance by 14 March 2014. The claimant did not comply by that date. Her claim was therefore automatically struck out. She later supplied 38 pages of material and applied under Rule 38 of the Employment Tribunal Rules of Procedure 2013 to set aside the strike-out.

Employment Judge Gumbiti Zimuto refused relief. He considered that the late material did not clarify the claims and that inadequate medical evidence left a real risk that a further preliminary hearing would not be effective. The claimant appealed, contending that the Judge had failed to consider a fair trial, proportionality, the medical evidence and lesser sanctions.

1. Appeal dismissed. The Employment Judge had not erred in law by refusing relief from the automatic strike-out.

2. The relevant decision was not whether to strike out the claim afresh. The unless order had already taken effect because of the claimant’s non-compliance. The question under Rule 38 was whether setting it aside was in the interests of justice.

3. Orders for particulars are directed to securing a fair hearing. A respondent is entitled to know the acts alleged against it, and the tribunal cannot properly adjudicate a claim expressed only in general accusations. A fair trial was therefore difficult, if not impossible, unless the allegations were clarified.

4. Relief will usually be granted where the required information has been supplied by the time relief is sought, because the purpose of the order will then have been achieved. That was not this case. The 38 pages supplied after the deadline did not make the claims intelligible; their lack of utility was not challenged on appeal.

5. The Judge had considered whether an effective and fair hearing could occur. His observation that an efficient and proportionate hearing was unlikely without a preliminary hearing necessarily addressed that issue. He was entitled to regard the medical evidence as insufficient to establish both an adequate explanation for non-compliance and a realistic prospect that the claimant could attend a relisted preliminary hearing.

6. On an application for relief, it was for the claimant to place clear supporting evidence before the Tribunal. The Tribunal was not required to seek further evidence from her doctor. Proportionality could include the effects on colleagues of serious, unspecified allegations. Neither a further case-management order nor costs for the adjournments addressed the central difficulty: whether sufficient clarification could sensibly be expected.

7. The Judge was not required to set out the law at length provided that his reasons showed that he had the relevant principles in mind. They did. No ground disclosed an error of law, so his discretionary decision stood.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld Employment Judge Gumbiti Zimuto’s refusal, dated 28 April 2014, to set aside the automatic strike-out under Rule 38 of the Employment Tribunal Rules of Procedure 2013.
• Employment Tribunal: The claimant failed to comply with an unless order requiring proper particulars of her discrimination claims. The claim was automatically struck out.