W Davey v Harrods Ltd
[2023] EAT 133
Brian Carver v London Borough of Newham & Anor
17 April 2024
[2024] EAT 64
Employment Appeal Tribunal
A worker's claim was thrown out because the court said he didn't follow the rules. But the appeal court said the first court didn't properly explain its decision and didn't look at all the worker's responses, so they sent the case back to be decided again properly.
Key Facts
- •Mr. Brian Carver appealed a judgment from Employment Judge Brown that struck out his claim against London Borough of Newham and Mr. Jerry Austin.
- •The Employment Tribunal struck out the claim due to the claimant's non-compliance with case management orders, failure to actively pursue the claim, and the belief that a fair hearing was no longer possible.
- •The claimant argued he had complied with the orders, albeit late, and that a fair hearing was still possible.
- •The respondent argued the claimant had a history of non-compliance and the significant delay prejudiced them.
- •The appeal focused on whether the Employment Judge's decision to strike out the claim was justified and followed proper procedure.
Legal Principles
A Tribunal must consider all relevant factors when deciding whether to strike out a claim for non-compliance, including the seriousness of the non-compliance, prejudice to the other party, the possibility of a fair hearing, and whether a lesser sanction is proportionate.
Rule 37.1 and the overriding objective
Strike out applications for failure to actively pursue a claim generally fall into two categories: intentional and contumelious default, or inordinate and inexcusable delay causing substantial risk of unfair trial or serious prejudice.
Rolls Royce Plc v Riddle [2008] IRLR 873 and Birkett v James [1978] AC 297
A decision to strike out must comply with Meek v City of Birmingham District Council [1987] IRLR 250, adequately explaining the reasons to the affected party.
Meek v City of Birmingham District Council [1987] IRLR 250
Outcomes
The appeal was successful.
The Employment Judge's judgment did not adequately explain why a fair trial was not possible or consider whether strike out was a proportionate sanction. The judge likely did not consider the claimant's correspondence of 25th November 2022.
The case was remitted back to the Employment Tribunal.
The application to strike out was not properly determined. The respondent can renew their application within 28 days, otherwise further directions will be given.