Nkechi Leeks v Royal Wolverhampton NHS Trust

The Employment Appeal Tribunal dismissed the claimant's appeal against the refusal of a reconsideration application which sought to overturn an earlier strike-out and costs order. The EAT held that the reconsideration judge correctly applied the tests in Rules 70–72 and Rule 38(2) of the Employment Tribunal Rules of Procedure 2013 and that there was no realistic prospect of the original decision being varied or revoked.

The tribunal found there had been no compliance with a clear Unless Order made on 21 April 2021; the non-compliance was treated as deliberate, serious and prejudicial to the respondent. Because the claimant made no effective attempt to comply before seeking reconsideration, the application amounted to an impermissible second bite at the cherry and relief from sanctions would inevitably have failed. The judge therefore properly refused to reopen the strike-out or to revisit the costs order.

Background and parties:

• The claimant brought employment claims including whistleblowing allegations in an ET1 presented 19 May 2020. The respondent sought further and better particulars on 8 August 2020, including details required by reference to the Employment Rights Act 1996 s.43B.
• Case management led to an Unless Order made on 21 April 2021 by Employment Judge Dimbylow requiring a detailed reply by 5 May 2021; failure to comply would result in automatic strike-out.
• On 8 June 2021 Employment Judge Lloyd found no compliance, struck out the claim and ordered costs against the claimant. The claimant sought reconsideration, which was refused on 20 December 2021 (sent 17 January 2022). The claimant obtained permission to appeal to the EAT and represented herself before HHJ Beard.

Nature of relief sought:

• The claimant sought reconsideration of the strike-out (relief from sanctions) and, consequentially, reconsideration of the costs order.

Issues framed by the court:

1. Whether the reconsideration judge ought to have granted relief from the sanction of strike-out in respect of the whistleblowing claim on the basis that sufficient particulars existed to allow a fair defence (Ground 1).
2. Whether the reconsideration judge ought to have reconsidered the costs order if relief from sanction had been appropriate (Ground 2).
3. Whether the judge erred by not addressing overlap between the sanction of strike-out and the costs order (Ground 3).

Court's reasoning and conclusions:

• The EAT analysed the procedural framework: Rule 38(2) (relief from automatic dismissal), Rules 70–72 (reconsideration), and Rule 76 (costs). It noted that Rule 70 encapsulates an interests of justice test and that, in cases of Unless Orders, reconsideration should not permit a rehearing or a second attempt to present evidence or submissions already available.
• The Unless Order in paragraph 7 of the case-management order was sufficiently clear about the particulars required. The reconsideration judge had considered whether the claimant had complied and found that she had not. The non-compliance appeared deliberate, was serious, and prejudiced the respondent because the respondent could not fairly defend the claim without the requested particulars.
• Because there had been no attempt to comply before seeking reconsideration, relief from sanctions would have been bound to fail. The reconsideration application was therefore properly refused under Rule 72(1) as having no reasonable prospect of success. The costs challenge was parasitic on Ground 1 and could not succeed if Ground 1 failed; revisiting costs would have required re-examination of a discretionary exercise already undertaken and was inappropriate on reconsideration.
• The EAT emphasised the public policy of finality in litigation and that Rule 38 hearings are effectively final hearings on compliance with Unless Orders; a later reconsideration is a limited and exceptional remedy.

Procedural path to the EAT:

• ET1 filed 19 May 2020; request for particulars 8 August 2020; Unless Order 21 April 2021 (EJ Dimbylow); strike-out and costs 8 June 2021 (EJ Lloyd); reconsideration refused 20 December 2021 (sent 17 January 2022); permission to appeal granted at a Rule 3.10 hearing; EAT hearing and judgment 17 October 2024 ([2024] EAT 184).

The appeal is dismissed. The Employment Appeal Tribunal held that the reconsideration judge properly applied the Rules (notably Rule 38(2) and Rules 70–72 ET Rules 2013) and correctly concluded there had been no compliance with a clear Unless Order. The non-compliance was found to be deliberate, serious and prejudicial; the reconsideration application provided no realistic prospect of varying or revoking the original strike-out and costs decision, and therefore relief from sanctions and a costs re-opening were properly refused.

Claimant presented ET1 19 May 2020; respondent requested further and better particulars 8 August 2020; Unless Order made 21 April 2021 by Employment Judge Dimbylow; strike-out and costs ordered 8 June 2021 by Employment Judge Lloyd; reconsideration refused 20 December 2021 (written communication sent 17 January 2022); permission to appeal advanced by HHJ Auerbach; appeal determined by the Employment Appeal Tribunal ([2024] EAT 184) on 17 October 2024.