Lynn Phipps v Priory Education Services Ltd

Rule 70 requires a broad assessment of the interests of justice. The tribunal must balance the applicant’s injustice if reconsideration is refused against the respondent’s injustice if it is granted, while giving proper weight to finality.

A representative’s default will generally not suffice where the party had a fair opportunity to present the case. That is a general rule, not a blanket bar. Exceptional misconduct or procedural failure depriving a party of that opportunity may justify reconsideration. An asserted professional-negligence remedy should be treated with scepticism where it is speculative or practically unavailable. Reasons must show that these competing considerations have been addressed.

Mrs Lynn Phipps brought claims including unfair dismissal, discrimination and breach of contract after her employment was terminated. Her representative obtained an adjournment shortly before the final hearing but failed to provide ordered medical evidence and did not respond to subsequent strike-out warnings. The Employment Tribunal struck out the claim and later refused reconsideration.

The Employment Appeal Tribunal, presided over by Griffiths J, upheld that decision. The appeal concerned whether the representative’s misconduct, of which the claimant had no knowledge and in which she was not implicated, deprived her of a fair opportunity to present her case and made reconsideration necessary in the interests of justice.

1. Appeal allowed. The Court of Appeal unanimously held that the claim should have been reconsidered. It revoked the strike-out order, the Employment Tribunal’s decision confirming it and the order of the Employment Appeal Tribunal.
2. Rule 70 of the Employment Tribunals Rules of Procedure 2013 confers a broad discretion. The tribunal must weigh the injustice to the applicant if reconsideration is refused against the injustice to the respondent if it is granted, while giving weight to the public interest in finality.
3. The usual rule, reflected in Trimble v Supertravel Ltd [1982] ICR 440 and Lindsay v Ironsides Ray & Vials [1994] ICR 381, is that representative failings do not generally justify review where the party had a fair opportunity to present the case. That rule is not a blanket prohibition. As illustrated by Newcastle-upon-Tyne City Council v Marsden [2010] ICR 743, an exceptional procedural failure which deprives a party of that opportunity may justify reconsideration.
4. The possibility of a professional-negligence claim is not necessarily an adequate answer. In a case involving an unregulated representative, uncertain prospects, difficulty valuing the lost claim and doubtful recoverability, the asserted alternative remedy should be approached with scepticism. The Court regarded that aspect of Lindsay as unrealistic on the facts of this case.
5. The Employment Tribunal’s reasons were not Meek-compliant. They stated the general rule but did not explain why reconsideration was nevertheless unjustified despite findings that the claimant was unaware of the misconduct, was not culpable and had not had a fair opportunity to present her case. Those matters, together with the fanciful alternative remedy, substantially outweighed finality and the respondent’s prejudice. The answer was sufficiently clear that remittal was inappropriate; the claim was to proceed on its merits in the usual way.
6. By way of practice guidance, the court invited consideration of sending a Rule 37(2) strike-out warning to a represented party personally as well as to the representative.

1. Court of Appeal (Civil Division): Appeal allowed; the strike-out and subsequent orders concerning reconsideration were revoked: [2023] EWCA Civ 652.
2. Employment Appeal Tribunal: Appeal dismissed. Griffiths J upheld the Employment Tribunal’s refusal to reconsider the strike-out.
3. Employment Tribunal: The claim was struck out on 4 January 2019 for non-compliance with an order and failure actively to pursue it. Reconsideration was refused on 3 July 2019.