S Wakeman v Boys and Maughan Solicitors & Anor
[2024] EAT 39
Viktor Kiseliov & Ors v Alpha Vehicles Limited
17 January 2024
[2024] EAT 8
Employment Appeal Tribunal
Three workers had their legal case thrown out for missing a deadline. A higher court overturned this decision, saying the judge didn't properly consider that the workers mostly met the deadline and that the employer hadn't been entirely fair. The case will be reheard by a different judge.
Key Facts
- •Three claimants (Kiseliov, Kurtkus, Iljin) had their employment tribunal claims dismissed for non-compliance with an Unless Order.
- •The Unless Order required the claimants to submit various documents by a specific deadline.
- •The claimants argued they had substantially complied with the order and their non-compliance was unintentional due to language barriers and lack of representation.
- •The employment judge refused to set aside the dismissal, citing continued non-compliance.
- •The claimants appealed, arguing the judge's decision was perverse.
Legal Principles
Rule 38(2) of the Employment Tribunal Rules of Procedure 2013 allows a party whose claim is dismissed for non-compliance to apply to have the order set aside if it is in the interests of justice.
Employment Tribunal Rules of Procedure 2013, Rule 38(2)
When considering relief from sanctions under Rule 38(2), the tribunal should consider a wide range of factors, including the extent of non-compliance and the proportionality of imposing the sanction. The focus is on whether it is in the interests of justice to set aside the order, not whether it was just to make the order in the first place.
Wentworth-Wood v Maritime Transport Limited UKEAT/0316/15/JOJ and Neary v Governing Body of St Albans Girls’ School [2010] ICR 473 CA
The overriding objective of the court procedure should be considered, including proportionality.
Implicit in the judgement, referencing the overriding objective multiple times.
Outcomes
The Employment Appeal Tribunal (EAT) allowed the appeal.
The EAT found the employment judge's decision was perverse. The judge failed to adequately consider the claimants' arguments regarding substantial compliance, the respondent's misleading conduct in omitting key documents, and the disproportionate nature of the sanction given the unintentional nature of the non-compliance and the significance of the claimants' allegations (potential fraud involving public funds).
The EAT remitted the claimants' application to a different employment judge.
Given the EAT's conclusion, the EAT believed setting aside the dismissal was the only just outcome. A different judge would hear the application to set aside the dismissal, guided by the EAT's reasoning.