R Jones v Ministry of Justice

Where an appellant persistently breaches directions, fails to provide evidence needed to determine reasonable adjustments, and ceases to co-operate so that an appeal cannot fairly be heard within a reasonable time, the Employment Appeal Tribunal may strike out the appeal under Rule 26. The Tribunal must consider a disabled party’s position and take practicable, reasonable steps to facilitate participation. That obligation does not require indefinite delay or acceptance of unworkable arrangements. It must be balanced with fairness to the respondent, the interests of other litigants, proportionality, expedition and expense.

The appellant had brought two appeals from the Registrar’s refusals to extend time for appeals against Employment Tribunal case-management decisions dated 17 December 2019 and 24 February 2020. The underlying appeals had been lodged one day and 43 days late respectively.

Following prolonged delay and repeated disputes concerning adjustments said to be required because of medical conditions, the EAT directed the appellant to supply current medical evidence and warned that the appeals might be struck out. She neither provided the evidence nor contacted the EAT before the directions hearing. The central issue was whether the appeals could proceed fairly within the reasonably near future.

1. The two appeals were struck out. Rule 26 of the Employment Appeal Tribunal Rules 1993 empowered the EAT to make a just order, including strike-out, for breach of an EAT order. The appellant had failed to comply with the direction to provide current medical evidence and had given no explanation or proposal enabling the appeals to proceed.
2. The statutory reasonable-adjustments duty under section 20 of the Equality Act 2010 does not apply to the exercise of a judicial function. Nevertheless, fairness and the general law require a tribunal to take disability into account and to make reasonable adjustments where appropriate. The EAT had made substantial efforts to provide practicable assistance and could expect the appellant to co-operate in identifying and using workable arrangements.
3. Reasonable adjustments do not require the EAT to permit continuing stasis. The Tribunal was required also to consider the respondent’s considerable prejudice from delay and costs, and the interests of other litigants in the expeditious and proportionate determination of appeals.
4. There was no material suggesting that the appeals could come to a fair hearing within a reasonable time. Justice therefore required strike-out, with the consequence that the appeals were dismissed.

After the strike-out order, the appellant sought a stay pending an application to the ECHR. There was no basis for a stay because the appeals were no longer extant.

• Employment Appeal Tribunal: two appeals were brought against Registrar’s orders refusing extensions of time to appeal Employment Tribunal case-management decisions. The present EAT decision struck out both appeals for non-compliance and failure to co-operate.
• Employment Appeal Tribunal Registrar: extensions of time were refused in respect of appeals from Employment Tribunal case-management decisions of 17 December 2019 and 24 February 2020.
• Employment Tribunal: made the relevant case-management decisions on 17 December 2019 and 24 February 2020.