S Fox v South Essex Academy Trust

An Employment Tribunal may strike out a costs application as part of a claim, or under its general case-management powers. That power is discretionary and must be exercised consistently with the overriding objective.

Before imposing strike-out for non-compliance, the Tribunal must address whether the default was deliberate or wilful, whether a fair hearing remains possible, the prejudice and disruption caused, proportionality, and less draconian alternatives. Where refusal of a postponement effectively determines a substantive issue, the Tribunal must balance fairness to the applicant against the other party’s rights and the public interest.

A Tribunal must also engage with a disabled litigant’s identified disadvantages and requested accommodations. Reasons which do not demonstrate those assessments disclose an error of law.

The claimant had succeeded in a disability discrimination claim based on a failure to make reasonable adjustments. After the remedy hearing, the respondent applied for costs and the claimant made a cross-application for costs or preparation time.

The respondent later withdrew its costs application. The claimant, a disabled litigant in person, explained that health difficulties, uncertainty over without-prejudice material, changing directions, and the late transfer of bundle preparation prevented her from complying with the final timetable. The Employment Tribunal refused postponement and, of its own motion, struck out and purported to dismiss her application for costs for persistent non-compliance with orders.

The claimant appealed against the refusal of postponement, the strike-out, the alleged failure to make adjustments and the dismissal of her costs application.

1. Appeal allowed. The Employment Tribunal had power to strike out a costs application. Such an application was capable of being a part of a claim for rule 37 purposes; alternatively, the general case-management power could support strike-out. The Tribunal did not, however, determine the costs application on its merits. Its purported dismissal was therefore unsupported by the costs jurisdiction in rules 76 to 78.

2. In exercising a strike-out power for non-compliance, the Tribunal had to apply the principles in Blockbuster, Weir Valves and Neary. It had to consider whether the defaults were deliberate or wilful, whether a fair hearing remained possible, the disruption or prejudice caused, proportionality and lesser sanctions. The Tribunal found persistent failure but made no finding that the claimant’s defaults were wilful or deliberate. It did not engage with explanations arising from the unresolved admissibility issue, the respondent’s changed position, the late transfer of preparation responsibilities, or the claimant’s health difficulties.

3. The refusal of postponement also failed to show the necessary balancing exercise. A refusal which effectively disposes of a substantive issue engages common-law and article 6 fairness. Delay alone could not be determinative, particularly where the remaining costs issues were largely documentary and familiar to the respondent. The Tribunal failed to consider realistic alternatives, including use of the second day of the listing, determination on the papers, or dealing with only part of the application.

4. The Tribunal had previously found the claimant disabled and was required to consider the practical disadvantage caused by her condition. Its reasons did not engage with her requests for timely clarification and additional time, or with accommodations that could have enabled her effective participation without substantive unfairness to the respondent.

5. The strike-out and purported dismissal were set aside. The costs application was remitted to a differently constituted Employment Tribunal, because the original decision was wholly flawed and the original panel had heard no part of the application.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the strike-out and purported dismissal, and remitted the costs application to a differently constituted Employment Tribunal: [2024] EAT 199.
• Employment Tribunal (East London): On 15 December 2022, refused postponement and struck out and dismissed the claimant’s costs application under rule 37(1)(c).