Singh v Singh (as representative of the Guru Nanak Gurdwara West Bromwich)

When deciding an application for relief from the sanction imposed by an Unless Order under Rule 38(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, an Employment Tribunal must determine what is in the interests of justice. It must act judicially, consider relevant factors, disregard irrelevant factors and carry out a substantive balancing exercise.

The exercise is evaluative rather than mathematical. The Tribunal need not use a tick-box approach, assign predetermined weight to any factor or explain its reasoning as if showing mathematical workings. Its reasons must nevertheless demonstrate real engagement with the competing considerations and adequately explain the conclusion. An appellate tribunal should not interfere merely because it might have struck the balance differently.

The Claimant appealed from the Birmingham Employment Tribunal’s refusal to set aside an Unless Order and the consequential dismissal of his employment claims. The application had been made under Rule 38(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The Unless Order required the Claimant to serve a witness statement containing full and frank details of his income. He failed to comply, and his claim was dismissed. The Employment Tribunal considered the breach, the explanations offered, the possibility of a fair trial, prejudice, alternative sanctions, procedural history and wider public-policy considerations, but refused relief.

The appeal proceeded on whether the Tribunal had failed to conduct the required balancing exercise and whether its reasoning was adequate.

1. Appeal dismissed. The Employment Tribunal had properly refused relief from the sanction imposed by the Unless Order.
2. Under Rule 38(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal must decide whether setting aside the dismissal is in the interests of justice. It must exercise its judgment rationally, take account of relevant factors, disregard irrelevant factors and act consistently with the purpose of the legislation.
3. The fact that an Unless Order has been made is relevant but not determinative. No single factor is necessarily decisive. The Tribunal must undertake a broad assessment and balance the competing considerations in the particular case.
4. The exercise is not a mechanical calculation. The Tribunal need not count factors favouring each party, assign a fixed weight to each factor or show its workings. It must, however, demonstrate in substance that it has weighed the relevant factors and explain its conclusion adequately.
5. The Employment Tribunal’s reasoning showed engagement with the competing considerations. It considered whether a fair trial remained possible, the effects of delay and disproportionate use of judicial resources, the Respondent’s potential prejudice, the availability of costs and the significance of repeated non-compliance. It was entitled to consider the breach and its implications for the future conduct of the proceedings.
6. The EAT was not entitled to conduct its own assessment of the weight to be given to the factors merely because another tribunal might have reached a different conclusion. The Tribunal’s decision was a permissible judgment call, and no error of law was shown.

• Employment Tribunal: The Birmingham Employment Tribunal refused the application under Rule 38(2) to set aside the Unless Order and dismissal of the claim.
• Employment Appeal Tribunal: The appeal was dismissed. Permission to appeal to the Court of Appeal was refused because no arguable point of law or other compelling reason was identified.