Brian Carver v London Borough of Newham & Anor

An Employment Tribunal considering strike out for non-compliance, failure actively to pursue a claim, or inability to hold a fair hearing must consider the overriding objective. It must assess the seriousness of the default, prejudice, whether a fair hearing remains possible, and whether a lesser sanction would be proportionate.

Where written representations have been made in response to a strike-out warning, the Tribunal must give adequate reasons for rejecting them. Reasons must explain why strike out, particularly in a discrimination claim, was proportionate and why a fair trial was not possible. A judgment which fails to reveal whether material correspondence was considered cannot support the exercise of the strike-out discretion.

The claimant appealed against an Employment Tribunal judgment sent to the parties on 16 March 2023. The Tribunal had struck out his claims for non-compliance with case-management orders, failure actively to pursue the claim, and inability to hold a fair hearing.

The claimant contended that, although his compliance was late, he had responded to the strike-out warning on 25 November 2022 with an updated schedule of loss and list of documents. He said that he had made written representations, that a fair hearing remained possible, and that strike out was disproportionate. The respondents relied on a pattern of delay and non-compliance and contended that the claimant's response was insufficient.

The central issue was whether the Tribunal had lawfully exercised its discretion to strike out the claim and had given adequate reasons for doing so.

1. Appeal allowed. The Employment Tribunal's strike-out judgment could not stand because its reasons were inadequate. The matter was remitted to the Employment Tribunal, where the original strike-out application remained undetermined.

2. Under Rule 37.1, strike out for non-compliance, lack of active pursuit, or inability to hold a fair hearing requires consideration of the overriding objective. Relevant matters include the seriousness of the non-compliance, prejudice to the other party, whether a fair hearing remains possible, and whether a lesser sanction would be proportionate.

3. The claimant had responded to the strike-out warning and had, albeit late, complied with the outstanding orders. Late compliance was material compliance. Rule 37(2) required that he be given a reasonable opportunity to make representations. The judgment did not explain why his 25 November 2022 representations were insufficient.

4. The reasons did not address why a fair trial was no longer possible, despite compliance in November and a hearing still some months away. Nor did they explain why strike out, rather than a lesser sanction, was proportionate, particularly given that the claims included race discrimination.

5. The most likely explanation was that the Employment Judge had not seen the claimant's response to the strike-out warning. The judgment stated that no compliance and no representations had been provided, although both had been provided. The reasons therefore did not disclose the factors considered and were not compliant with Meek.

6. If the respondents wished to renew their original application for strike out, they were to notify the Employment Tribunal within 28 days. Otherwise, the Regional Employment Judge was to give further directions. Any fresh application was to be made in the usual way.

• Employment Appeal Tribunal: Allowed the claimant's appeal and remitted the matter because the Employment Tribunal had not given sufficient reasons for strike out.

• Employment Tribunal: Struck out the claimant's claims in a judgment sent on 16 March 2023 for non-compliance, failure actively to pursue the claim, and asserted inability to hold a fair hearing.