Staffordshire County Council v Desna Lowers

A tribunal considering strike-out must separately decide whether a fair trial remains possible and whether strike-out is proportionate. It must evaluate realistic alternatives, including costs, postponement, partial strike-out and case-management measures. Repeated and unexplained breaches of directions, including disclosure obligations and a consent order, may justify the conclusion that conduct is unreasonable and that a fair trial on liability is no longer possible.

A party facing strike-out must have an adequate opportunity to respond. Whether that opportunity is reasonable is intensely fact-specific. A tribunal must also consider the consequence of strike-out for participation at any remedy hearing. Failure to do so is an error of law, although it may require no further order where participation has subsequently been permitted.

The claimant brought claims arising from her employment, including unfair dismissal, disability discrimination and failures to make reasonable adjustments. The respondent repeatedly failed to comply with case-management directions, including directions concerning its pleaded case, further particulars and disclosure.

Employment Judge Noons struck out the respondent’s defence and grounds of resistance in a judgment sent to the parties on 18 August 2022. She held that the respondent’s conduct was unreasonable, that a fair trial was no longer possible, and that strike-out was proportionate.

The respondent appealed. It alleged procedural unfairness, errors in the assessment of its non-compliance and proportionality, and a failure to consider lesser sanctions and participation at a remedy hearing.

1. The appeal was allowed in part on one limited ground. The Employment Judge was entitled to find that the respondent had repeatedly and wilfully disregarded tribunal directions. The conclusion was supported by its repeated disclosure failures, its conscious refusal to comply with a consent order for further particulars without seeking a variation, and delay in providing an adequate response.

2. The Employment Judge did not overlook the litigation history or treat inexperience as equivalent to wilful disregard. She was entitled to infer unreasonable conduct from the respondent’s pattern of unexplained defaults and lengthy periods of inactivity.

3. The Employment Judge separately considered whether a fair trial on liability remained possible. She was entitled to conclude that the imminent 16-day hearing could not fairly proceed, given unresolved pleading and disclosure issues and a further 1,200 pages of late disclosure. A further postponement would not secure a fair trial because of the elapsed time, the risk of fading memories and the earlier vacation of the hearing.

4. The proportionality assessment was adequate. The Employment Judge considered costs, sequential witness statements, postponement and partial strike-out. She was entitled to conclude that those measures would not cure defaults which affected both the unfair-dismissal and discrimination defences. The procedural-unfairness ground also failed: the respondent had adequate notice that late disclosure was likely to be raised and did not seek an adjournment.

5. However, the Employment Judge did not consider the consequence of strike-out for the respondent’s participation in a remedy hearing, contrary to the approach in Bolch v Chipman, [2004] IRLR 140. That was an error of law. It did not undermine the strike-out on liability. As the respondent had subsequently been permitted to participate in a remedy hearing under Rule 21, no further direction was required.

• Employment Appeal Tribunal: Allowed the appeal only to the extent that the Employment Judge had not considered participation at a remedy hearing. The strike-out of the defence on liability was otherwise upheld.
• Employment Tribunal: Employment Judge Noons, in a judgment sent on 18 August 2022, struck out the respondent’s defence and grounds of resistance.