R Tedd v Surrey County Council

Under rule 37(1)(d), an employment tribunal must first determine whether a claim has not been actively pursued and then exercise its discretion in all the circumstances. The tribunal need not use express labels for those stages if its reasons show that it addressed both in substance.

Where a claimant intentionally and contumeliously defaults, including by deliberately misleading the tribunal about reasons for failing to progress the claim, the decisive discretionary question is whether it is fair and just to permit continued access to the tribunal system. A future fair hearing will usually weigh strongly against strike-out, but may carry little weight in exceptional cases of serious deliberate misconduct. Lesser sanctions need not be explored where they would not address that misconduct.

The claimant brought claims of constructive dismissal for protected disclosures and disability discrimination after resigning from his fixed-term employment with the respondent.

The Employment Tribunal made case-management orders requiring further particulars. It found that the claimant had not properly complied and had deliberately misled the tribunal and respondent about a supposed medical appointment which was said to prevent full attendance at a preliminary hearing. It struck out the claims under rule 37(1)(d) of the Employment Tribunals Rules of Procedure 2013.

The claimant appealed, contending that the tribunal had omitted the discretionary stage of the strike-out test, failed to consider proportionality and lesser sanctions, and overlooked substantial late compliance with the order for particulars.

1. Appeal dismissed. The Employment Tribunal was entitled to strike out the claims under rule 37(1)(d) of the Employment Tribunals Rules of Procedure 2013.

2. The proper approach was the two-stage approach. The tribunal had first to identify conduct meeting the rule 37 threshold and then decide, in the exercise of its discretion and having regard to all relevant circumstances, whether strike-out was fair and just. Although clear labels are helpful, their absence is not an error of law if the reasons show that both stages were undertaken in substance.

3. The tribunal had made unchallenged findings that the claimant intentionally failed properly to comply with the order for particulars and deliberately misled the tribunal about his inability to attend the hearing. Its reasons showed that it considered the overriding objective, prior adjustments and extensions, the deliberate nature and seriousness of the conduct, delay, expense, prejudice to the respondent, and the waste of tribunal resources.

4. In an intentional and contumelious-default case, the question is not confined to whether a fair hearing may eventually be possible. The tribunal may properly consider whether it is just to allow a party who has shown disrespect or contempt for the tribunal process to continue to use that process. The availability of a fair future hearing will normally be a powerful consideration against strike-out, but this was an exceptional case of serious misconduct.

5. The tribunal was not required to consider an unless order or partial strike-out. Such measures could not appropriately address deliberate misleading of the tribunal. The claimant’s late, substantial but incomplete provision of particulars was not material to the discretionary decision and could properly be given little or no weight.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s strike-out under rule 37(1)(d) was upheld.
• Employment Tribunal: The claimant’s claims were struck out for not being actively pursued after findings of intentional and contumelious default.