S Bharaj v Santander UK Plc & Ors

A tribunal’s power to strike out a claim for non-compliance with an order is constrained by common-law and article 6 proportionality. It must consider the seriousness and responsibility for the default, resulting disruption or prejudice, whether a fair hearing can proceed within the listed hearing window, and whether a less drastic measure would suffice.

Where a deliberate breach prevents a fair trial within that window and no lesser measure can secure one, strike out will ordinarily be the only proportionate response, absent exceptional circumstances. A party cannot withhold compliance with an order as leverage in a separate procedural dispute.

The claimant brought claims of whistleblowing detriment and dismissal, victimisation, sex discrimination and sex-related harassment against her former employer and two individual respondents.

The Employment Tribunal struck out all claims under rule 37(1)(c) after she deliberately declined to exchange her witness statement by the required date, despite being able to do so. The late exchange meant that a listed 20-day merits hearing could not proceed. It later refused her application for reconsideration.

The claimant appealed both decisions. The principal issue was whether strike out was a proportionate response to the non-compliance, and whether the tribunal had erred by referring to a Supreme Court authority concerning reconsideration under the CPR.

1. Both appeals were dismissed. The Employment Judge made an unchallenged finding that the claimant had failed to comply with an order. Her default was serious because timely exchange of witness statements was necessary for proper preparation of the listed 20-day hearing.

2. The tribunal correctly applied the structured approach in Weir Valves and the proportionality requirement in Blockbuster. In a rule 37(1)(c) case it must consider all the circumstances, including the magnitude of the breach, responsibility for it, disruption and prejudice, whether a fair hearing remains possible, and whether a lesser remedy would be appropriate.

3. The relevant question was whether a fair trial could proceed in the allocated hearing window, not whether one might be possible at an unspecified future date. The claimant had completed her statement but deliberately withheld it to obtain concessions concerning disclosure and the bundle. That dispute did not justify unilateral non-compliance. The delay prevented the listed hearing and relisting would materially jeopardise a fair trial because of further delay and fading recollection.

4. The Employment Judge had considered possible lesser measures. Neither would cure the prejudice or preserve a fair hearing. Strike out was therefore the only proportionate response. Article 10 did not give the claimant a further right to disregard tribunal orders merely because her claims included protected disclosures.

5. On reconsideration, rule 70 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires the tribunal to decide whether reconsideration is necessary in the interests of justice, with due weight to finality. The CPR-specific issue in AIC did not arise in the Employment Tribunal. Although its citation was unhelpful, the Employment Judge applied the correct Employment Tribunal principles.

• Employment Appeal Tribunal: Both appeals dismissed: [2023] EAT 152.
• Employment Tribunal: Employment Judge Glennie struck out the claims under rule 37(1)(c), in a decision sent on 2 March 2021, and refused reconsideration, in a decision sent on 8 July 2022.