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22/12/2011

Mustafa v. Guy’s & St Thomas NHS Foundation Trust

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Employment Appeal Tribunal

An employment judge had failed to demonstrate that he had applied the correct approach to an automatic strike-out of a claim for an alleged failure to comply with an unless order. His decision was therefore overturned.

The appellant employee (M) appealed against the strike-out of her claims against the respondent NHS trust (G).
M had brought claims of unfair dismissal and discrimination on the grounds of disability, sex, race and religion. At a case management discussion an employment judge ordered her to provide further and better particulars of her claims. She failed to comply and the judge made an unless order. She then provided some additional information but did not respond to the request in full. She later instructed solicitors who withdrew her claims of sex, race and religious discrimination. The judge concluded that the rest of M's claims had been automatically struck out because of her failure to comply with the unless order. He decided to grant relief in relation to her unfair dismissal claim, as that had been properly particularised, but refused to grant relief in respect of the remaining claim for disability discrimination.

 
HELD: (1) The employment judge had addressed the question of non-compliance briefly and had not referred to any of the requests or the replies. He gave no hint that he had had regard to the approach to the question of non-compliance described in QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] C.P.L.R. 710, nor did he identify which documents he was considering. The employment judge's treatment of such an important and complex legal issue was so brief and so opaque that the parties had no sensible means of knowing how he came to his decision and whether or not his decision complied with the law as set out in QPS, James v Blockbuster Entertainment Ltd [2006] EWCA Civ 684, [2006] I.R.L.R. 630, Neary v St Albans School for Girls Governors [2009] EWCA Civ 1190, [2010] C.P. Rep. 9 and Thind v Salvesen Logistics Ltd . M's pleadings were brief. G's requests were well-structured and equally brief, as were M's responses. It would have been possible for the employment judge to form a view as to whether, either individually or as a group, the answers given to the requests were sufficient or a genuine attempt to answer the request, or whether they fell significantly short of what was required, QPS and Neary followed, Blockbuster and Thind applied, Reiss v Woolf [1952] 2 Q.B. 557 doubted. He had failed to particularise his reasoning so that the parties could understand how he had come to his decision (see paras 39-41 of judgment). (2) On the issue of relief, the judge was not necessarily perverse in concluding on the basis of the material before him that M's failure to comply with the unless order was deliberate. It was potentially open to the judge to conclude that the delay in providing the particulars might be prejudicial to G. However, the judge had not separately considered the issue of proportionality, which was an important check upon the consequences of a strike-out (paras 42-44). (3) The employment judge had failed to show that he had applied the correct legal approach to both elements of his decision. His decision that M had failed to comply with the unless order, and his refusal of relief, were overturned. The case was therefore remitted to a different employment judge to consider the matter afresh (paras 45, 48).
 

LTL 11/1/2012
EMPLOYMENT TRIBUNALS,NON-COMPLIANCE,PARTICULARS OF CLAIM,PROPORTIONALITY,STRIKING OUT

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