Sivanandan v Independent Office for Police Conduct & Anor

An employment tribunal may make an unless order under rule 38 in relation to a costs application. A costs application may be a part of a claim or response for that purpose.

Non-compliance causes automatic dismissal. The written notice under rule 38(1) confirms that result, but a defaulting party need not wait for it before seeking relief under rule 38(2).

The statutory test is whether setting aside the order is in the interests of justice. It requires a broad assessment, including the reason and seriousness of default, prejudice, the prospect of a fair hearing and the significance of the unless order. Exceptional circumstances are not a separate legal requirement.

The claimant's discrimination claims against the Independent Office for Police Conduct and Penna PLC were dismissed after a merits hearing. Penna later pursued a costs application.

Penna served its costs schedule about four hours after the deadline in an unless order. It sought relief from sanction the following day. The Employment Tribunal found that the costs application had been automatically dismissed but granted relief, and later refused the claimant's reconsideration application.

The claimant appealed. The central issues were whether rule 38 of the Employment Tribunals Rules of Procedure 2013 applied to a costs application, whether the procedure was fair, and whether the tribunal had erred in granting relief.

1. Appeal dismissed. The tribunal was entitled to grant Penna relief from the automatic dismissal of its costs application. The application remains live.

2. Rule 38(1) of the Employment Tribunals Rules of Procedure 2013 permits an unless order concerning a costs application. The phrase “part of” a claim or response includes a costs application, whether it is made with the original pleading or later. Rule 38(3), which specifies the effect of dismissing a response, does not narrow that wider power.

3. Dismissal follows automatically on non-compliance. A rule 38(1) notice declares and confirms that consequence; it does not itself dismiss the claim or response. A party may seek rule 38(2) relief before the notice is issued. Here the tribunal properly determined both that there had been non-compliance and the relief application sequentially in the same letter.

4. Rule 38(2) allows determination on written representations unless the application requests a hearing. Both parties must have a fair opportunity to make written representations, assessed in context. It would have been better to give the claimant a short further opportunity before the initial decision. However, her detailed reconsideration application gave her a fair opportunity by the time the reconsideration decision was made.

5. The rule 38(2) question is whether relief is in the interests of justice. The tribunal was not required to apply CPR 3.9 or to find exceptional circumstances. It was entitled to treat the four-hour delay as minimal, accept the explanation, find no deliberate default or material prejudice, and balance the serious consequence for Penna against the claimant's position. No relevant matter was overlooked and the decision was not perverse.

6. The apparent-bias challenge failed. A fair-minded and informed observer would not infer bias from the tribunal's engagement with the claimant's submissions or its observation about her demonstrated ability to address employment-law issues.

7. No order concerning the deposit had been appealed. Its disposition, and any related applications, remain for the Employment Tribunal.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 7.
• Employment Tribunal: Granted Penna relief from automatic dismissal of its costs application under rule 38(2), then refused reconsideration.
• Employment Tribunal: The claimant's discrimination complaints were dismissed following a merits hearing in 2016, by a reserved judgment sent in May 2017.
• Employment Appeal Tribunal and Court of Appeal: The claimant's earlier appeal against the liability judgment was dismissed by the EAT. The Court of Appeal refused a renewed permission application on 27 September 2019.