S Bharaj v Santander UK Plc & Ors

The Employment Appeal Tribunal dismissed the claimant's appeals against an employment judge's decision to strike out her claims under rule 37(1)(c) for failure to comply with a tribunal order and against the refusal of a reconsideration application. The tribunal reaffirmed that a strike-out which is a terminating ruling must be a proportionate response and applied the structured approach in Weir Valves and the proportionality principles in Blockbuster. The employment judge's findings that the claimant had deliberately delayed exchange of witness statements to leverage disclosure disputes, that a fair hearing was not possible in the listed trial window, and that no less drastic measure would secure a fair trial, were lawful and reasonable. The reconsideration refusal stood; the Supreme Court decision in AIC was not treated as applicable to Employment Tribunal reconsideration procedure.

Background and procedural posture:

• The claimant was a former senior manager at the first respondent bank and brought claims including public interest disclosure (whistleblowing) detriment and automatically unfair constructive dismissal under sections 47B and 103A of the Employment Rights Act 1996, victimisation under section 27 of the Equality Act 2010, direct sex discrimination under section 13 EqA 2010 and harassment related to sex under section 26 EqA 2010.
• The case was factually complex and had an extended procedural history with multiple preliminary hearings and postponements; a key dispute concerned disclosure and exchange of witness statements. A prior Deol order on disclosure had been set aside on appeal and replaced by a consent-style disclosure statement.
• The employment judge (EJ Glennie) struck out the claimant's claim under rule 37(1)(c) for failure to comply with an order to exchange witness statements by the date directed, and later refused a reconsideration application under rule 70; those decisions were appealed to the Employment Appeal Tribunal.

Nature of the applications (relief sought):

• On appeal the claimant challenged (i) the strike-out decision under rule 37(1)(c) and (ii) the refusal of a reconsideration application under rule 70.

Issues framed by the court:

• Whether the employment judge applied the correct legal tests for strike-out for non-compliance with a tribunal order (including the guidance in Weir Valves and Blockbuster), and properly carried out the proportionality exercise required by common law and Article 6 ECHR.
• Whether the employment judge failed to take into account relevant matters (COVID pressures, litigant in person status, personal circumstances, outstanding disclosure complaints) and whether the sanction was disproportionately punitive.
• Whether AIC Ltd v Federal Airports Authority of Nigeria (a Supreme Court CPR case) was correctly relied on or applied in the reconsideration context in the Employment Tribunal.

Court's reasoning:

• The EAT held that the tribunal had lawfully found breach of the Davidson order for exchange of witness statements, and that the judge had correctly identified and applied the leading authorities (Weir Valves, Blockbuster, Arrow Nominees, Baber, Emuemukoro) and the overriding objective. The judge's fact findings — in particular that the claimant had delayed exchange to press her disclosure objections despite having a complete statement — were permissible findings of a first-instance tribunal.
• The tribunal accepted that terminating orders engage proportionality under Article 6 and the common law, and that striking out is only proportionate if no less drastic measure will secure a fair trial in the existing listing. EJ Glennie considered possible lesser measures (partial dismissal of individuals, starting later in the 20-day window, relisting) and concluded none would avoid unacceptable prejudice or loss of a fair hearing within the listing; strike out was therefore proportionate.
• On reconsideration, the EAT held that AIC (a CPR/TCC decision about sealing orders) did not assist in Employment Tribunal rule 70 applications because the procedural rules and the finality principle operate differently in the ET; the tribunal's approach was consistent with ET authorities (including Phipps) and the interests-of-justice test for reconsideration.

The appeals are dismissed. The Employment Appeal Tribunal held that Employment Judge Glennie lawfully found breach of the Davidson order and lawfully exercised his discretion under rule 37(1)(c): a fair hearing was not possible within the listed trial window, the claimant had deliberately delayed exchange, and the judge properly considered and rejected less drastic measures so that strike out was a proportionate response. The refusal of the reconsideration application was also upheld; reliance on AIC was unnecessary but did not vitiate the tribunal's conclusion that reconsideration was not in the interests of justice.

The decision under appeal was the Employment Judge Glennie ruling striking out the claimant's claim for non-compliance with a tribunal order (rule 37(1)(c)) and the later refusal of a reconsideration application (rule 70). The EAT heard the appeal and dismissed both appeals. The case also involved earlier interlocutory proceedings including an appeal to a judge (Linden J) on disclosure dated 15 October 2020 concerning the Deol order, which is described in the judgment.