Duncan Lewis Solicitors Ltd v Puar

On an application under Employment Tribunal Rule 38(2), the tribunal must make a broad, fact-sensitive assessment of the interests of justice. Relevant matters will generally include the reason for default, its seriousness, prejudice, and whether a fair trial remains possible. No factor is necessarily decisive.

An appellate tribunal should exercise restraint, but may intervene where the tribunal has not adequately explained its conclusions on material factors. The absence of ordered particulars does not inevitably make a fair trial impossible or require refusal of relief. It does, however, require a reasoned explanation of why a fair trial can still proceed.

The Claimant brought claims including wrongful dismissal, race discrimination, harassment and victimisation after her employment ended. She did not provide further information ordered by the Employment Tribunal. An unless order was made and her claims were automatically struck out.

The Claimant applied under Employment Tribunal Rule 38(2) to set aside the strike-out. The Watford Employment Tribunal granted that application after considering the reason and seriousness of the default, prejudice, and whether a fair trial remained possible.

The employer appealed. It contended that the Employment Tribunal had inadequately addressed the seriousness of the breach and the possibility of a fair trial while the claims remained insufficiently particularised.

1. Appeal allowed. The decision setting aside the automatic strike-out was vitiated by inadequate reasons. The application under Employment Tribunal Rule 38(2) was set aside and remitted to the same Employment Judge for a fresh determination.

2. The Rule 38(2) inquiry is a broad assessment of the interests of justice. It is fact-sensitive and appellate intervention is restrained. However, the tribunal must decide rationally and fairly, taking account of relevant matters and giving adequate reasons for its conclusions.

3. The Employment Judge did not clearly determine whether the Claimant had been in default. His reasoning indicated scepticism about her asserted non-receipt of the orders, but did not make an express finding. That issue, including when the orders were received, was to be reconsidered afresh.

4. The Employment Judge gave no express conclusion on the seriousness of the default. His acceptance that the Claimant had focused on the relief hearing did not adequately explain the seriousness of her continuing failure to provide ordered particulars.

5. The employer’s position on a fair trial was wrongly described as neutral. It submitted that the tribunal could not be satisfied that a fair trial was possible without the ordered particulars. The absence of particulars does not invariably make a fair trial impossible or compel refusal of relief. Nevertheless, having accepted that the employer did not have the full picture of the claim, the Employment Judge gave no adequate explanation for concluding that a fair trial was possible.

6. The fresh hearing must not take account of particulars served after the hearing under appeal. To do so could give a party in default a potential advantage from the appeal process. The remitted application was suggested to be heard immediately before the applications already listed for 16 January 2020.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the Rule 38(2) application for fresh consideration.
• Employment Tribunal, Watford: on 2 March 2018, following a hearing on 9 February 2018, set aside the automatic strike-out of the Claimant’s claims.