S Sually v HMRC
[2023] EAT 83
Bibi Adilah Rojha v Zinc Media Group Plc
14 March 2023
[2023] EAT 39
Employment Appeal Tribunal
A woman's employment tribunal case was thrown out because she didn't show up to important meetings and follow the judge's instructions. A higher court agreed that the judge was right, saying the woman's actions were so bad that the entire case had to be dismissed.
Key Facts
- •The claimant, Mrs Rojha, appealed three decisions of the London Central Employment Tribunal (ET): (1) proceeding with a case management hearing in her absence; (2) making a deposit order; and (3) making an unless order.
- •The claimant failed to attend two case management hearings and did not comply with directions for further particulars and a statement of remedies.
- •The ET made an unless order stating that non-compliance would result in striking out the entire claim.
- •The claimant did not comply, and her case was struck out.
- •The claimant appealed the unless order and the deposit order to the EAT.
Legal Principles
Unless Orders: Rule 38 ET Rules allows for an unless order, specifying that non-compliance by a specified date leads to dismissal without further order. Proportionality and the overriding objective (Rule 2 ET Rules) are key.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 38
Unless Orders: Care is required when drafting unless orders, especially with multiple claims. The sanction must be tailored to the default and proportionate.
Wentworth-Wood v Maritime Transport Ltd, Johnson v Oldham MBC
Unless Orders: An unless order should not be punitive but a case management tool; it shouldn't deprive a party of a properly pleaded claim.
Ijomah v Nottinghamshire Healthcare NHS Foundation Trust
Deposit Orders: Rule 39 ET Rules allows for a deposit order if a specific allegation has little reasonable prospect of success. A reasonable attempt to identify claims and issues is required before considering a deposit order.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 39
Deposit Orders: The purpose is to discourage claims with little prospect of success, not to effect a strike-out 'through the back door'.
Cox v Adecco Group UK & Ireland, Hemdan v Ishmail
EAT's Approach: The EAT will only interfere with the ET's case management decisions on Wednesbury grounds (wrong principle, irrelevant matters considered, perverse conclusion).
Associated Provincial Picture Houses Ltd v Wednesbury Corporation, Noorani v Merseyside TEC Ltd
Outcomes
Appeal regarding the unless order dismissed.
The ET's decision was proportionate. The claimant's non-compliance affected all claims due to their interconnectedness. The ET considered the impact on case progression and the need for a remedy statement.
Appeal regarding the deposit order dismissed.
The ET reasonably construed the claimant's claim of sex and/or pregnancy and maternity discrimination as relating to the February 2018 salary refusal. The claimant's non-attendance at the hearing and failure to clarify the claim justified the deposit order.