Background: 

The claimant was dismissed on the grounds of redundancy.   He brought claims of unfair dismissal and dismissal relating to making protected disclosures. He sought interim relief which was dismissed in November 2020.  At that hearing it was directed that the claimant set out the full details of his protected disclosures claim by 26th November 2020 and the claimant was to make a calculation of the loss caused by the dismissal and an assessment for injury to feelings and send it to the Tribunal and the respondent by 29th January 2021.  

The claimant sent a list of protected disclosures on 20th November.  On 19th January the respondent produced a formal ET3 in response to the issues.  It also produced a list of issues.  On 22nd January the claimant emailed asking for an extension of time citing mental health issues.   The Tribunal did not reply.  The respondent objected to the applications but their emails were similarly not responded to.  The claimant emailed on two further occasions relating to this but they were not responded to.  He did email the respondent saying that the case was not about money but rather he would take a ‘fair basic payment’ which would be acceptable.   

The respondent sought a strike out on the basis of repeated noncompliance.   The hearing took place on 30th April 2021.  There was no suggestion from the contents of the case that the Judge was aware of the extensions of time.  The Judge made an unless order setting out new time frames.  On the deadline day, the claimant emailed asking the respondent and the Tribunal to find the attached schedule of loss.  In fact, there was no schedule attached.   He emailed it the next morning (which was out of time).  The Judge struck out the claim the following week.  The Judge cited that the claimant was able to blog and commentate on social media about his case and should have been able to comply with the time limits.  

Outcome: 

The EAT allowed the appeal.   They stated that it was not a case in which they were disagreeing with the Judge below, but rather that the Judge did not have the relevant factors when ensuring that the decision was proportionate.   There was a suggestion that the claimant had persisted in breaching directions yet that was not a fair characterisation of the case.  In fact, the other directions had been complied with including the direction for a witness statement well within time.  As a result, it was held that there had been a misdirection in relation to the correct legal test to be applied and that the strike out was not appropriate.  

Practical Guidance for Employers: 

This case centres upon Tribunal practice and procedure when it comes to striking out claims.  The EAT made it clear that it was placing no blame on Tribunal staff who were dealing with a very difficult situation during the pandemic.  However, the lack of information put forward about the emails requesting extension of time and the lack of acknowledgement should have been given to the Judge.  Further, when the Judge was making the decision to strike out there ought to have been a discussion of the legal principles yet that was not done with rather overarching phraseology being used in relation to the claimant’s conduct.  The legal principles and tests should be the basis for the decisions being made. 

The full case is available here:
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-w-davey-v-harrods-ltd-2023-eat-133