Staffordshire County Council v Desna Lowers

The Employment Appeal Tribunal considered an appeal against an Employment Judge's decision to strike out the respondent's defence and grounds of resistance pursuant to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The EAT confirmed that strike-out is a draconian remedy and must be approached by reference to whether a fair trial remains possible and whether strike-out is proportionate. The Employment Judge was held to have been entitled to conclude that a fair trial on liability was not possible given repeated non-compliance with tribunal directions, significant and late disclosure and the respondent's failure to provide adequate further and better particulars.

The EAT found a single error of law: the Employment Judge did not expressly consider the specific consequences of strike-out for the respondent's participation in any remedy hearing (applying paragraph 55(4) of Bolch v Chipman). That omission did not undermine the Judge's conclusion on liability and did not require further directions because the respondent was subsequently permitted to participate in a remedy hearing. The remainder of the grounds of appeal, challenging procedural unfairness, failure to consider proportionality and failure to consider lesser sanctions, were dismissed.

This appeal concerned the Employment Judge Noons' order (sent 18 August 2022) striking out the respondent's defence and grounds of resistance under the ET Rules after a lengthy history of non-compliance. The litigation had many preliminary hearings, multiple directions for further and better particulars and disclosure, and late productions of material by the respondent's representatives shortly before final preparatory steps.

Nature of the application: appeal from an order striking out the respondent’s defence and grounds of resistance; the appellant sought to challenge strike-out and associated procedural rulings.

Parties and procedural path: the claim originated in the Employment Tribunal; the Employment Judge struck out the respondent's defence pursuant to the ET Rules; permission to appeal was initially refused on the papers but certain grounds were permitted to proceed at a Rule 3(10) hearing; the appeal was decided by the Employment Appeal Tribunal (Judge Keith).

Issues framed:

• whether the Employment Judge misdirected herself on the test for whether a fair trial remained possible (Emuemukoro was relied upon by the parties);
• whether the respondent was given an adequate opportunity to respond to the strike-out application (authorities including Hasan and Catton were cited);
• whether the Employment Judge failed to consider proportionality and lesser sanctions (Blockbuster, Weir Valves and related authorities were referred to);
• whether the Employment Judge should have considered the consequence of strike-out for participation in any remedy hearing (Bolch v Chipman).

Reasoning and conclusions: the EAT considered each permitted ground in turn. On procedural fairness the Tribunal concluded the respondent had had a reasonable opportunity to respond: the late disclosure issue had been on notice and the respondent’s representative had not sought an adjournment or applied to vary orders. On the merits of the strike-out, the EAT held it was open to the Employment Judge to conclude the respondent had repeatedly and, in part, wilfully disregarded tribunal directions (particularly disclosure obligations and a consent order for further and better particulars), that the case was not ready for a 16-day final hearing within the available timetable, and that lesser sanctions or partial strike-out were not adequate. The EAT did, however, identify an error of law in that the Employment Judge had not expressly considered the effect of strike-out on the respondent's participation in any remedy hearing (Bolch v Chipman). That error was not, in the circumstances, material: the respondent was subsequently permitted to participate in a remedies hearing and no further directions were required.

The appeal was allowed in part: the Employment Judge was entitled to strike out the respondent’s defence because a fair trial on liability was no longer possible and strike-out was proportionate in all the circumstances. However, the Employment Judge erred by failing to consider expressly the consequences of strike-out for the respondent’s participation in any remedy hearing (paragraph 55(4) of Bolch v Chipman). That error did not undermine the conclusion on liability and required no further directions because the respondent has since been permitted to participate in a remedy hearing.

This is an appeal to the Employment Appeal Tribunal ([2024] EAT 110) from an Employment Tribunal decision of Employment Judge Noons (judgment sent 18 August 2022) which struck out the respondent's defence and grounds of resistance under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Permission to appeal was initially refused on the papers (Michael Ford KC) and subsequently certain grounds (A to D) were permitted to proceed following a Rule 3(10) hearing (His Honour Judge Auerbach).