Baber v The Royal Bank Of Scotland Plc

Rule 37(2) requires that an affected party be given a reasonable and proper opportunity to make representations before a strike out is made.

The notice may be given by the opposing party and need not be sent by the Tribunal provided the party in default in fact has a real and reasonable opportunity to respond.

Strike out is a draconian, non-punitive remedy and should only be used where no fair trial is possible or no lesser sanction is proportionate.

The claimant issued unfair dismissal and disability discrimination claims made in December 2013. Multiple case management orders and extensions followed. The Employment Tribunal struck out the claim on 1 July 2015 for non-compliance with orders made on 8 May 2015. A reconsideration request was refused on 21 July 2015.

The claimant appealed both the strike out and the refusal to reconsider. The Employment Appeal Tribunal heard the appeal sitting alone and was asked to determine whether Rule 37(2) notice requirements were met and whether the strike out was lawful and proportionate.

(1) Appeal allowed. The strike out Judgment of 1 July 2015 is set aside and the claim is reinstated. The reconsideration Judgment falls away (see paras [59]–[61]).

(2) Construction of Rule 37(2): the rule requires that the affected party be given a reasonable and proper opportunity to make representations. The opportunity need not be given directly by the Tribunal. However, because of the serious consequences of strike out, the Tribunal must assure itself that the affected party was aware of the application and had a reasonable opportunity to respond (see paras [11], [14], [48]–[52]).

(3) Application of principle to facts: on the material before the Tribunal, proper notice had been given to the claimant's solicitor by the respondent's email of 28 May and the claimant therefore had an opportunity to respond. That limb of the appeal therefore failed (see paras [50]–[52]).

(4) Proportionality and reasons: a strike out order is a last resort. The Employment Judge failed to identify the extent or magnitude of the non-compliance. The Judge gave no consideration to whether a fair trial remained possible or whether lesser sanctions were appropriate. The Tribunal therefore did not apply the required analysis drawn from established authorities and erred in law (see paras [12]–[13], [55]–[58]).

(5) Disposal: the strike out order is set aside and the claim is reinstated. The matter should proceed to a full hearing unless the respondent chooses to reapply, in which case the respondent must start afresh based on the position at the time of any fresh application. Parties invited to make written submissions on final disposal within 14 days (see paras [59]–[61]).

• Employment Appeal Tribunal: Appeal allowed; strike out set aside; claim reinstated. See [2018] UKEAT 0301_15_1801.
• Employment Tribunal: Strike out judgment promulgated 1 July 2015 and corrected/re-promulgated 21 July 2015; reconsideration refused (lower decisions set aside by this EAT judgment).