W Davey v Harrods Ltd
[2023] EAT 133
S Bharaj v Santander UK Plc & Ors
9 November 2023
[2023] EAT 152
Employment Appeal Tribunal
Bharaj's boss was accused of discrimination and whistleblowing retaliation. Bharaj didn't give the court her statement on time because she was upset about other things, causing a delay. The judge threw out her case because it was too late and there wasn't a fair way to sort things out quickly. The appeal court agreed.
Key Facts
- •Miss Bharaj, a former senior manager at Santander, brought claims for whistleblowing detriment, automatically unfair constructive dismissal, victimisation, direct sex discrimination, and sex harassment.
- •Her claims were struck out by Employment Judge Glennie for non-compliance with a Tribunal order to exchange witness statements by a specified date.
- •The non-compliance stemmed from Bharaj's linking the exchange of witness statements to her ongoing dispute over document disclosure.
- •Bharaj's appeal challenged both the strike-out decision and the subsequent refusal of her reconsideration application.
- •Bharaj was unrepresented at the hearing where the strike-out order was made.
Legal Principles
Rule 37(1)(c) allows the Tribunal to strike out a claim for non-compliance with rules or orders.
Employment Tribunal Rules 2013
A strike-out order, being a terminating ruling, must be proportionate under common law and Article 6 ECHR.
Blockbuster Entertainment Ltd v James [2006] IRLR 630; Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371
Proportionality requires considering the magnitude of the default, responsibility, disruption caused, possibility of a fair trial, and whether lesser remedies exist.
Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371
In considering a reconsideration application (rule 70), cases from other jurisdictions with different procedural rules are unhelpful.
AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16
The Employment Tribunal's overriding objective is to deal with cases fairly and justly.
Employment Tribunal Rules 2013
Outcomes
Appeal dismissed.
The Employment Judge's decision to strike out the claim was proportionate. Bharaj's non-compliance was serious, caused significant disruption, and jeopardized a fair trial. No less drastic remedy would have ensured a fair trial within the available timeframe. The Judge considered all relevant factors, including Bharaj's personal circumstances, but found her actions unreasonable.
Reconsideration appeal dismissed.
The strike-out decision was upheld; therefore, there was nothing to reconsider. Furthermore, the Employment Judge did not err in considering AIC Ltd v Federal Airports Authority of Nigeria, as the principles of finality and proportionality were correctly applied, even without reference to that case.