Nkechi Leeks v Royal Wolverhampton NHS Trust

An application to reconsider an Employment Tribunal decision is not a further opportunity to advance material or submissions which should have been presented at the earlier hearing. The interests-of-justice assessment includes the reason and seriousness of any default, prejudice, the possibility of a fair trial, the overriding objective, and the strong public interest in finality.

A clear unless order must be obeyed. Where a party has deliberately provided none of the essential particulars required, and the opposing party cannot fairly defend the claim without them, relief from the resulting strike-out would fail. A costs order based on that conduct need not be reopened where the strike-out and refusal of reconsideration stand.

The claimant appealed the Employment Tribunal's refusal, on 20 December 2021, to reconsider a judgment confirming that her claims had been automatically struck out under an unless order and awarding the respondent £750 costs.

The unless order required a detailed response to requests for particulars, including particulars of the alleged protected disclosure and detriment in the claimant's whistleblowing claim. The claimant contended that sufficient information had already been supplied. She argued that the Tribunal should have granted relief from the sanction and reconsidered the costs order.

The central issue was whether the reconsideration decision disclosed an error of law.

1. Appeal dismissed. The appeal was against the refusal of reconsideration, rather than the substantive decision made in June 2021. The grounds substantially sought to reopen that earlier decision.

2. The proper route to set aside a strike-out resulting from an unless order is rule 38(2) of the Employment Tribunal Rules of Procedure 2013. A later reconsideration application is governed by rules 70 to 72. The interests-of-justice test is broad. It includes the former review criteria identified in Outasight, the overriding objective, and finality in litigation.

3. The Tribunal's June 2021 hearing was, in substance, the rule 38(2) hearing. It had considered whether the claimant complied with the order and whether the sanction should be relieved. A reconsideration application should not permit a second attempt to make submissions or adduce available evidence, particularly after a rule 38 hearing.

4. The unless order was clear. It required answers to identified requests for further particulars. The Employment Judge was entitled to find complete and deliberate non-compliance. The default was serious and prejudicial because the respondent could not defend a whistleblowing claim without knowing the information allegedly disclosed and the person to whom it was disclosed. The ET1 did not provide those essential particulars, and the reconsideration application did not cure the defect. Relief from sanction would therefore have failed.

5. The costs grounds depended on the success of the first ground. Since the strike-out stood, there was no basis to revisit the earlier discretionary costs decision. The asserted overlap between the strike-out and costs order did not justify reconsideration.

• Employment Appeal Tribunal: dismissed the claimant's appeal from the refusal to reconsider the strike-out and costs judgment.
• Employment Tribunal: Employment Judge Lloyd refused reconsideration under rule 72 of the Employment Tribunal Rules of Procedure 2013, holding that the original decision had no reasonable prospect of being varied or revoked.
• Employment Tribunal: following the unless order made at a case-management hearing, Employment Judge Lloyd confirmed the automatic strike-out and awarded costs.