Background:

The claimant brought a series of claims against her previous employer, the respondent.   The issue arising at the Tribunal and before the Court of Appeal related to Tribunal procedure leading to a strike out of her claims.

The claimant instructed a firm of legal representatives who submitted the claim on her behalf.   The Tribunal sent the correspondence to the legal representatives relating to her claim and not to the claimant directly.   The correspondence was not acted upon and the case was struck out on the basis of non-compliance.   The claimant appealed that decision to the EAT and subsequently to the Court of Appeal.

Outcome:

The EAT held that the overall interests of justice had to be taken into account and that the respondent had prepared for two full hearings, there had to be some finality and therefore they rejected the appeal.

The Court of Appeal allowed the claimant’s appeal.   They stated that the interests of justice test is ‘broad-textured’ and that the Tribunal has wide discretion.   They did outline that the failing of a professional representative would not ordinarily constitute a ground for review where the client would want the case to be reargued.  The Court of Appeal took into account the protection of the respondent as well as ensuring finality of judicial decisions.   However, the default of a professional representative not being relied upon was not a blanket rule.  There can be exceptional circumstances in which the court can step in and provide reconsideration.

The argument was made that the claimant could pursue a claim against the representative.  The issue here was that it was not known whether the company or the individual was regulated by anyone and whether they had indemnity insurance.  It is difficult to also examine the amount of compensation that would be payable there.  Therefore, where the argument is raised that there could be a case against a representative that can be treated as a factor but it should be treated with due scepticism.  Taking into account the factors the Court of Appeal allowed the appeal against the strike out stating that the claimant was not implicated in the misconduct, her application was made within 10 days of the strike-out decision and the claimant was never given a fair opportunity to put forward her case.   Finally, the Court of Appeal requested a slight change to procedure in the Tribunal so that the claimant would be served personally on the claimant as well as their representatives.

Practical Guidance for Employers:

This case demonstrates some of the procedural aspects relating to strike out for failure to follow orders.  This demonstrates exactly what not to do from a representative perspective in which the repeated requests were ignored and no contact was made with the client.  That put the client in a perilous position and whilst it may seem unfair for the respondent to have to continue to prepare for such hearings the Court is ensuring that there is some fairness given to the blameless claimant in this situation.
https://www.bailii.org/ew/cases/EWCA/Civ/2023/652.html

Read Jason’s Review of the Employment Appeal Tribunal (EAT) decision here:
https://www.legal-island.com/articles/uk/case-law/2022/november/phipps-v-priory-education-services-ltd-2022-eat-129/