Viktor Kiseliov & Ors v Alpha Vehicles Limited

Under rule 38(2) of the Employment Tribunal Rules of Procedure 2013, relief from an automatic dismissal depends on the interests of justice. The tribunal has a broad discretion, but must consider all relevant matters, avoid irrelevant matters, and assess the extent and explanation of the default, proportionality, prejudice, and whether a fair trial remains possible.

A refusal of relief is erroneous where it gives insufficient weight to substantial compliance, the availability of the material needed for trial, the parties’ respective prejudice, and the consequence that dismissal prevents adjudication of significant claims. Administrative delay alone cannot justify a disproportionate sanction.

Three former employees brought Employment Tribunal claims concerning pay, notice, holiday pay and alleged furlough-related conduct. The employer also advanced a contractual counterclaim.

An unless order required the claimants to complete disclosure-related steps, address the list of issues, provide witness statements, and confirm compliance. Their claims and defence to the counterclaim were automatically dismissed. The Employment Judge refused their prompt application under rule 38(2) of the Employment Tribunal Rules of Procedure 2013 to set aside that dismissal.

The claimants appealed, contending that the refusal was perverse. The central issue was whether, on the Employment Judge’s own findings and the material already before the parties, the interests of justice required relief from the automatic sanction.

1. Appeal allowed. The Employment Judge’s refusal to set aside the automatic dismissal under rule 38(2) of the Employment Tribunal Rules of Procedure 2013 was plainly wrong and perverse.

2. The rule 38(2) inquiry is whether setting aside the dismissal serves the interests of justice. It gives the Tribunal a broad discretion, but requires consideration of all relevant factors and avoidance of irrelevant ones. There is no fixed checklist. Relevant matters include the extent and explanation of non-compliance, proportionality of dismissal, the ability to hold a fair trial, and the prejudice to each party. The Tribunal must be able to show that it considered whether the sanction was just.

3. The Employment Judge found that the application was prompt, the default was unintentional, and it was partly explained by language difficulties and absence of representation. The Judge also accepted compliance with the disclosure and issues requirements. The remaining matters concerning the witness statements were limited. The Judge failed adequately to weigh the claimants’ assertion that the statements and other material had repeatedly been sent before the deadline.

4. The material already available made the claims, the disputed issues and the information needed for a fair trial sufficiently clear. The Respondent could not identify what further information prevented the case proceeding to trial. The Judge also failed adequately to address the Respondent’s inaccurate dismissal application and omission of relevant material from hearing bundles.

5. Most importantly, dismissal permanently denied the claimants an independent adjudication of significant allegations. The Judge did not properly weigh that prejudice against any prejudice or relisting delay to the Respondent. The sanction was disproportionate to the limited default.

6. Applying the principles in Jafri v Lincoln College [2014] IRLR 544, there was only one correct outcome. The EAT set aside the dismissal of the claims and the response to the counterclaim, rather than remitting the rule 38(2) application. The proceedings were returned to the Employment Tribunal before a different Judge, with possible Regional Employment Judge involvement to secure trial as soon as practicable.

• Employment Appeal Tribunal: Allowed the appeal and set aside the automatic dismissal under rule 38(2) of the Employment Tribunal Rules of Procedure 2013.
• Employment Tribunal: Employment Judge James refused the claimants’ application to set aside the dismissal of their claims and response to counterclaim. The judgment and reasons were sent on 22 July 2022.