Viktor Kiseliov & Ors v Alpha Vehicles Limited
[2024] EAT 8
S Wakeman v Boys and Maughan Solicitors & Anor
20 March 2024
[2024] EAT 39
Employment Appeal Tribunal
A solicitor's case was thrown out because he didn't do everything the court ordered. He appealed, arguing the court didn't give him a fair chance because he missed some emails. The higher court agreed and sent the case back to be decided again properly, emphasizing the need for fairness in court proceedings.
Key Facts
- •The claimant, an experienced civil litigation solicitor, brought claims against his former employer for unfair dismissal, discrimination, and unpaid wages.
- •The Employment Tribunal issued an Unless Order requiring the claimant to provide disclosure and witness statements.
- •The claimant failed to fully comply with the Unless Order, leading to the striking out of his claim.
- •The claimant appealed, arguing that he had not had a fair opportunity to make representations before the Unless Order was made, and that the Tribunal relied on correspondence he had not seen.
- •The EAT found that the Employment Tribunal erred in its approach to the Unless Order application and remitted the case for redetermination.
Legal Principles
Overriding objective of Employment Tribunal Rules is to deal with cases fairly and justly, ensuring parties are on an equal footing and avoiding unnecessary delay or expense.
Rule 2 ET Rules
Tribunals have the power to make case management orders, including varying or setting aside earlier orders where necessary in the interests of justice.
Rules 29 and 30 ET Rules
Unless Orders are a draconian sanction and should be used carefully, with clear consequences for non-compliance; they should not be used lightly and should be easy to understand.
Rule 38 ET Rules, Minnoch v Interserve FM Ltd [2023] EAT 35
Correspondence with the Tribunal should be copied to all other parties (Rule 92 ET Rules) to ensure fairness.
Rule 92 ET Rules
When considering relief from sanction after an Unless Order, the Tribunal should consider the reason for the default, its seriousness, prejudice to the other party, and whether a fair trial remains possible. The fact that an Unless Order was made is an important consideration.
Thind v Salvesen Logistics Ltd UKEAT/0487/09/DA
A party cannot unilaterally disarm an Unless Order by applying to vary or discharge it; however, before an Unless Order ‘bites’, an application to vary or set aside might be possible using general case management powers.
Redhead v Hounslow LBC UKEAT/0086/13/LA, McCarron v Road Chef Motorways Ltd
Outcomes
Appeal allowed.
The Employment Tribunal erred in its approach to the application to vary or set aside the Unless Order, failing to account for the claimant's lack of access to relevant correspondence and the lack of opportunity to make representations before the second Unless Order was issued. The Tribunal also failed to adequately consider whether a fair trial remained possible given the circumstances.
Case remitted for redetermination by a different Employment Tribunal.
The errors made by the Employment Tribunal were fundamental to its decision, and the matter would benefit from reconsideration by a different judge.