Norey v Jazz Hair & Beauty

A tribunal should not strike out all claims for failure actively to pursue proceedings where the claimant has sufficiently particularised distinct monetary claims and the relevant warning required particulars only of a separate discrimination claim. Strike-out must be proportionate to the non-compliance identified. A failure to provide particulars of one claim may justify striking out that claim, but does not ordinarily justify dismissal of adequately pleaded claims which were not the subject of the direction.

The claimant brought claims of age discrimination, unlawful deductions from wages and accrued but unpaid holiday pay. The Employment Tribunal requested particulars of the age-discrimination claim and later warned that it was considering strike-out for failure actively to pursue the proceedings.

When no further age-discrimination particulars were received, the Tribunal struck out all claims. The ET1, however, contained figures and allegations concerning unpaid wages, National Minimum Wage underpayment and holiday pay. Documents in the appeal bundle also indicated that further schedules of the monetary claims had been sent to the Tribunal.

The claimant appealed against the strike-out of the monetary claims. The central issue was whether it was proportionate to strike out those claims when the direction for further particulars concerned only age discrimination.

1. Appeal allowed. The Employment Tribunal erred by striking out the claimant’s claims for unlawful deductions and holiday pay on the ground that they were not actively pursued.

2. The ET1 contained sufficient particulars to enable the monetary claims to be calculated. It identified alleged discrepancies between payslips and payments, unpaid hours, alleged underpayment below the National Minimum Wage, and outstanding holiday pay. Those claims were therefore capable of being pursued.

3. The Tribunal’s direction and pre-strike-out process required particulars of the age-discrimination claim. The claimant did not provide those particulars. It was legitimate to strike out that claim, but it was disproportionate to strike out the separate monetary claims merely because of that non-compliance.

4. The appeal bundle also indicated that the claimant had sought in January 2019 to provide schedules giving further details of wages and holiday pay. That reinforced the conclusion that wholesale strike-out was unjustified.

5. The monetary claims were remitted to the same Employment Judge for consideration in light of the parties’ information about the figures. The claimant remained responsible for pursuing the proceedings and was warned that any further unjustified failure to engage could attract robust case management.

• Employment Appeal Tribunal: Allowed the appeal against the strike-out of the unlawful-deduction and holiday-pay claims, and remitted those claims to the same Employment Judge.
• Employment Tribunal: Struck out all claims by judgment dated 27 February 2019 and sent to the parties on 28 February 2019, on the basis that they were not being actively pursued.