Lynn Phipps v Priory Education Services Ltd

This appeal concerned the exercise of the Employment Tribunal's power under Rule 70 of the Employment Tribunals Rules of Procedure 2013 to reconsider a prior strike-out order. The Court of Appeal reiterated the general principle that failings of a party's representative will not normally constitute grounds for review, but held that the rule is not absolute. Where exceptional circumstances mean that the claimant has not had a fair opportunity to present her case, the interests of justice may require reconsideration. Applying those principles, the court concluded the Employment Tribunal’s written reasons were not compliant with the requisite standard and that, on the facts found by the tribunal (including that the claimant was unaware of her representative's misconduct and was not implicated), reconsideration should have been granted. The strike-out order and related decisions were therefore revoked and the matter returned to the tribunal to proceed on the merits if the parties cannot agree.

Background and facts:

• The claimant brought employment tribunal claims for unfair dismissal and discrimination arising from her dismissal on or about 28 March 2017. She was represented throughout by Mr Christopher Johnstone of One Assist Legal Services (OALS/OASL).
• A hearing listed to begin on 12 March 2018 was adjourned after the representative applied for a postponement citing a medical emergency and was ordered to provide corroborative medical evidence. The representative failed to comply with subsequent tribunal orders to produce adequate medical evidence and to correct or produce documents. Multiple strike-out warnings were issued and, on 4 January 2019, the tribunal struck out the claim for non-compliance and for not actively pursuing the claim.
• The claimant applied for reconsideration and the tribunal (EJ Kelly) refused the application on 3 July 2019 and made a wasted costs order against OASL. The Employment Appeal Tribunal (Griffiths J) dismissed the claimant’s appeal. The claimant appealed to the Court of Appeal.

Procedural posture and issues:

• Nature of the application: an appeal against decisions refusing reconsideration of a strike-out order and affirmance by the EAT.
• Issues before the court: whether the tribunal had erred in applying the principle that failings of a representative are not generally grounds for review; whether the tribunal’s reasons were sufficient; whether the claimant had an adequate alternative remedy against her representative; and whether the interests of justice required reconsideration under Rule 70.

Court’s reasoning and conclusions:

• The Court reviewed authorities including Trimble, Lindsay, Marsden, Flint and Jurkowska and emphasised that the "interests of justice" test is wide but must be applied sensibly, not by rote.
• It accepted the Employment Tribunal's factual findings that the claimant was unaware of her representative's failures and was not implicated in them, and that the representative had acted improperly, resulting in wasted preparation by the respondent.
• The Court held that the tribunal’s written reasons were not Meek-compliant and insufficiently explained why the public interest in finality and the respondent’s prejudice should outweigh the claimant’s lack of any fair opportunity to present her case.
• The Court noted that an alternative remedy against the representative was in practice likely to be illusory given the absence of professional regulation or recoverable assets and the difficulty of proving the lost chance, and therefore that factor should be treated with scepticism.
• On the facts found by the tribunal, the Court concluded that the interests of justice required revocation of the strike-out and associated decisions and remittal for the claim to proceed on the merits if the parties do not agree otherwise.

Additional comment: the Court invited the President of Employment Tribunals to consider a modest practice change so that strike-out warning letters are sent to the litigant as well as to their representative where the litigant has provided representative details.

This was an appellate judgment: the appeal was allowed. The Court of Appeal held that although failings of a party's representative will not generally permit reconsideration, that rule is not absolute. On the factual findings that the claimant had not been aware of her representative's misconduct and had not had a fair opportunity to present her case, and given the realistic absence of an adequate alternative remedy against the representative, it was necessary in the interests of justice to revoke the tribunal's strike-out and the subsequent decisions and to permit the claim to proceed on the merits (or to be relisted if the parties cannot agree). The tribunal's written reasons were found not to be compliant with the required standard.

Appeal from the Employment Appeal Tribunal (Griffiths J) which had upheld the Employment Tribunal (EJ Kelly) decision refusing to reconsider the strike-out of the claimant's employment claims (original strike-out dated 4 January 2019; reconsideration refusal dated 3 July 2019). The EAT appeal was listed as EA-2021-000491-VP. The Court of Appeal allowed the appeal in [2023] EWCA Civ 652 and revoked the strike-out and related decisions.