Waiyego v First Great Western Ltd (Practice and Procedure: Amendment)

An Employment Tribunal's reasons must be read as a whole. Reasons are adequate where they make clear why applications failed, even if the decision does not separately label every application.

A strike-out application based on allegedly unreasonable or scandalous conduct requires attention to proportionality. Strike-out will not be proportionate where fault for delay is shared and other events would in any event require a revised timetable. A failure to give reasons for a discrete application is immaterial where an existing case-management order plainly authorised the impugned amendment and the application was bound to fail.

The Claimant brought employment claims against the Respondent. At a preliminary hearing, the Employment Tribunal dismissed her applications for costs, a preparation time order and a wasted costs order. Its reasons also addressed allegations that the Respondent's solicitors had acted unreasonably, scandalously and in contempt of court.

The Claimant appealed, principally contending that the Tribunal had failed to give reasons for refusing to strike out the whole response and for refusing to strike out paragraph 6 of an amended response. The central issue was whether any inadequacy in the Tribunal's reasons required remission.

1. Appeal allowed on one ground only, but without remission. The Tribunal's decision, read fairly and as a whole, gave adequate reasons for refusing to strike out the Respondent's whole defence, for refusing costs and wasted costs, and for rejecting the allegation of contempt.

2. The relevant issue for both the strike-out and costs applications was whether the Respondent's solicitors had acted unreasonably or scandalously. The Tribunal had sufficiently explained why that threshold was not met. It was entitled to find that both sides had contributed to delay, that the Claimant's solicitors had sought the adjournment of the December hearing, and that the later claim would in any event require further directions.

3. Further, even assuming that the threshold for strike-out had been met, striking out the whole defence would not have been proportionate. The Claimant's representatives' conduct was relevant to that assessment because the delay could not fairly be attributed solely to the Respondent's solicitors.

4. The Employment Judge did fail to address an oral application to strike out paragraph 6 of the amended response. That was an error of law. It was immaterial, however, because the earlier case-management order had given the Respondent broad permission to amend its case on limitation. The application to strike out that amendment was therefore bound to fail.

5. The Respondent's application for appeal costs was refused. Although the Claimant obtained no remittal and effectively lost the appeal, she had partly succeeded on a ground permitted to proceed at a Rule 3(10) hearing.

• Employment Appeal Tribunal: Allowed the appeal only insofar as the Employment Judge had failed to deal with an oral application to strike out part of the amended response. The error was immaterial and the matter was not remitted.
• Employment Tribunal, Bristol: At a preliminary hearing, dismissed the Claimant's applications for costs, a preparation time order and wasted costs, and gave case-management directions. Reasons were sent to the parties on 16 April 2015.