Amey Services Ltd v. Bate & Ors

Relief from the automatic strike-out imposed by an unless order requires a tribunal to determine whether there has been material compliance with every requirement of the order. It is not enough that the missing information might later be supplied so that a fair trial could then take place.

Where no compliance has even been attempted for particular claimants, relief cannot be granted to them. In assessing wasted costs, a tribunal may make a summary assessment. It need not conduct a line-by-line audit where it has considered the schedule and exercised its discretion on causation and proportionality.

Twenty-five claimants brought a multiple holiday-pay claim against Amey Services Ltd. An Employment Tribunal at Watford made an unless order requiring further information in response to specified requests. The claims were automatically dismissed after non-compliance.

The Tribunal later granted relief under rule 38(2) of the Employment Tribunal Rules 2013 and awarded £26,000 wasted costs against the claimants’ solicitors, OH Parsons LLP. The information relied upon for relief had been served on the day before the hearing. It did not address all required matters and gave no information for ten claimants.

Amey appealed the grant of relief. OH Parsons appealed the quantum of the wasted-costs order. The central issue was whether the Tribunal had lawfully granted relief without deciding whether there had been material compliance with the unless order.

1. Amey’s appeal was allowed in part. The Employment Judge erred in granting relief from the sanction of strike-out without determining whether the late material amounted to material compliance with the unless order. The enquiry had to cover every request covered by that order, including the request concerning the calculation under sections 221 to 224 of the Employment Rights Act 1996.

2. The Judge had expressly said that it was impossible to tell whether there had been compliance. He could not therefore conclude that relief was justified. Nor was the correct test whether a fair trial would be possible once the missing information became available. The relevant question required an assessment of the information actually provided when relief was sought.

3. The grant of relief to all 25 claimants was also legally wrong and perverse. Six claimants were no longer represented and had not supported the application. Four further claimants had no information supplied for them in the late document. There had been no purported compliance for those ten claimants. Applying Jafri v Lincoln College, there was only one lawful outcome: their applications for relief failed and their claims remained struck out.

4. For the remaining 15 claimants, the question whether there had been material compliance could not be determined by the Appeal Tribunal on the available material. Their applications were remitted to a freshly constituted Employment Tribunal, which was to consider compliance with the unless order in full and the consequent possibility of a fair trial.

5. OH Parsons’ costs appeal was dismissed. The Employment Judge had sufficiently addressed the discretionary third stage of the Ridehalgh wasted-costs test. A tribunal need not use formulaic words where its reasoning shows that it considered whether an award was just. Wasted costs are assessed summarily. The Judge was entitled to consider the schedule, accept that the costs had been incurred because of the negligent conduct, and reduce the award by reference to proportionality without a line-by-line assessment.

• Employment Appeal Tribunal: Amey’s appeal against relief from the strike-out sanction was allowed in part. Relief was refused for ten claimants and the remaining applications were remitted. OH Parsons’ appeal against the quantum of wasted costs was dismissed.
• Employment Tribunal, Watford: On 24 and 25 November 2016, the Tribunal granted relief under rule 38(2) of the Employment Tribunal Rules 2013 and made a wasted-costs order of £26,000 against OH Parsons LLP.