W Davey v Harrods Ltd

An Employment Tribunal may strike out a claim for non-compliance with an order only by applying the overriding objective and a proportionate response. It must assess all relevant circumstances, including the seriousness and responsibility for the default, resulting disruption or prejudice, whether a fair hearing remains possible, and whether a lesser measure is sufficient.

A strike-out decision is erroneous in law where the Tribunal fails to take account of material factors. An inadvertent, promptly corrected omission that causes no material prejudice and leaves ample time before trial will not ordinarily justify strike-out: a fair trial may remain possible and the claim should proceed.

The claimant brought claims arising from his redundancy dismissal, including unfair dismissal and dismissal for making protected disclosures concerning health and safety. The Employment Tribunal made case-management directions requiring, among other matters, a schedule of loss and disclosure.

The claimant sought extensions of time by emails which received no response from the Tribunal. Following the respondent's application, the Tribunal made a further case-management order. The claimant omitted a prepared schedule of loss from an email sent before the deadline, but sent it the next morning. The Employment Judge struck out the claims and refused reconsideration.

The claimant appealed. The central issue was whether strike-out for the late service of the schedule was a proportionate exercise of the Tribunal's discretion.

1. Appeal allowed. The Employment Judge's strike-out order was set aside and the proceedings were remitted to the Employment Tribunal for further directions leading to trial.

2. In exercising the discretion to strike out for non-compliance, the Tribunal had to apply the overriding objective and reach a proportionate result. The relevant inquiry included the seriousness of the default, whether it was attributable to the party or representative, the disruption, unfairness or prejudice caused, whether a fair hearing remained possible, and whether a lesser response would suffice. That approach was drawn from Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371.

3. The Employment Judge had not considered the relevant factors adequately. The claimant had sought extensions which the Tribunal had not acknowledged, and the Judge appeared not to have been aware of them. It was therefore unfair to characterise the claimant as persistently disregarding orders.

4. The missing attachment was an inadvertent omission, corrected the following morning. The claimant had then complied with every applicable direction, disclosure had been treated as complete, and there remained five months before trial. The absence of the claimant's own assessment of loss or injury to feelings caused the respondent no material prejudice. A fair hearing remained possible.

5. This was not merely a different discretionary conclusion on the same material. The Judge had failed to have regard to material considerations bearing on proportionality and had thereby misdirected himself or materially misapplied the legal test. On the facts, the only appropriate result was refusal of strike-out.

• Employment Appeal Tribunal: Allowed the claimant's appeal, set aside the strike-out order, and remitted the case for further directions leading to trial: [2023] EAT 133.
• Employment Tribunal: Made a case-management order on 30 April 2021, struck out the claims on 12 May 2021 for non-compliance, and refused reconsideration.