Many moons ago I worked on a case in which we had very little time to prepare. What had happened was that a member of the HR team of my client had been made redundant, and in a fit of pique, had locked his desk drawer and walked out with the key. In that drawer was an ET1, received from the Tribunal that morning. Fast forward six months, and someone finally managed to jimmy the drawer open – only to find that the hearing was, serendipitously, the next day. Cue a panicked call to the client’s retained employment lawyers, and that is where I became involved.
These sorts of things happen: Sometimes things are overlooked, or get lost, or diaries are mismanaged. Sometimes the impact will be substantial, other times it will be barely noticeable. The question is what (if anything) the Tribunal should do about it.
The impossibility of a fair trial
In the recent case of Emuemukoro v Croma Vigilant (Scotland) Ltd & Anor (EA-2020-000006-JOJ), the Tribunal – and then the EAT – had to grapple with just that question.
The employer, Croma Vigilant, had Peninsula Business Services to manage the case for them. However, at some point during proceedings, the file handler at Peninsula had left the business – and, it seems, no one had been assigned to pick up the case. As a result, at the start of a five day hearing, the Tribunal was presented with an overly long bundle that “did not include the documents which mattered”, and no witness evidence for Croma Vigilant whatsoever.
The Employment Judge at first instance (EJ Snelson) held that these defects could not be remedied such that it would be possible to have a fair trial during the five day trial window. This is hardly surprising: For a case requiring five days, there is likely to be a fair amount of witness evidence required. It is inconceivable that (i) statements could be produced, (i) the Claimant given enough time to consider them, and (iii) a full enquiry into the evidence be conducted by the Tribunal in whatever time was left.
As a result, and applying Rule 37(1)(b) and (c) of the ET Rules, EJ Snelson struck out the Respondent’s response, on the basis that it had behaved unreasonably and failed to comply with case management orders. In his decision, EJ Snelson noted the following factors in favour of a strike out:
- Adjourning the case would result in a long delay, given the impossibility of re-listing the hearing for circa six months.
- The Claimants remained out of work, and further were seeking reinstatement – a matter that had to be resolved without delay.
- The Claimants were in no way at fault, and should not be subjected to the continuing uncertainty that another delay would cause.
The parties were ordered to return for the fourth day of the allocation ready to discuss remedy.
The Appeal
Croma Vigilant appealed. Only two of its six grounds of appeal were allowed to proceed:
- The Tribunal failed to consider whether the Respondent’s unreasonable conduct took the form of a deliberate and persistent disregard of required procedural steps.
- The Tribunal should only have struck the case out if it was proportionate to do so, and that was not the case in this instance.
In his judgment, Mr Justice Choudhury set out effectively a two stage test: First, was the power to strike out triggered? And second, was it proportionate to exercise that power? By arriving at a point where it was not possible to hold a fair trial within the trial window (a position both parties agreed), the power had been triggered. Appellants can only challenge the exercise of that power on a Wednesbury basis – i.e. that it is an error of law or perverse. There were no such grounds here. The appeal was rejected.
Unreasonable conduct – deliberate default or carelessness?
The EAT also dealt with the question of whether unreasonable conduct had to take the form of “deliberate” conduct, or whether it could include negligent conduct on the part of professional advisers.
The EAT referred to the Court of Appeal’s decision in Blockbuster Entertainment v James [2006] EWCA Civ 684, in which the concept of deliberate and persistent disregard of required procedural steps was first established as unreasonable conduct. Choudhury J held that to include negligence in unreasonable conduct would be to “distort the Court of Appeal’s choice terminology”.
The standard remains, therefore, deliberate and persistent default, not negligence.
When is the fair trial impossible?
A helpful point to note is that the Respondent had sought permission to appeal on the basis that the Tribunal should have assessed whether a fair trial was possible at all, not just whether it was possible in the trial window. That ground of appeal was held to be unarguable and did not appeal. Even so, the issue was addressed in submissions and Choudhury J was dismissive of the concept that this is a general question:
“There is nothing in any of the authorities providing support for [the] proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike-out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party’s unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike-out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so.”
So it seems that the question the Tribunal must address in these sorts of circumstances is not a general one but a specific one: Can a fair trial be held now?
Final thoughts
This case should come as a sobering reminder to all practitioners of the importance of properly complying with orders and case management directions. Missing deadlines may not be the end of the world, and the Tribunal offers a relatively safe environment to correct those mistakes (certainly when compared to the civil courts).
Nevertheless, it remains the case – as it has been for many years – that one of the most common causes of negligence claims against legal advisors is missing deadlines. As this case shows, where those missed deadlines result in significant impact on the case, it can have huge ramifications for your client.
You might be wondering what happened in that case I mentioned at the start? Well, we took instructions, pulled together grounds of resistance, drafted a witness statement, instructed counsel and made our way to the Tribunal, all within less than 24 hours. Fortunately, it was a one-day hearing, and the other side were gracious enough to agree that our client should be allowed to present their very late evidence. It did not do us much good, however, as ultimately the Tribunal held that the Claimant’s dismissal had been unfair.
employment & discrimination 