By Richard Case
Automatic strike out for non-compliance with an unless order is not susceptible to an appeal as an alternative to an application for relief from sanction in the Employment Tribunal.
In Cunningham v Aurora Kendrick James Limted UKEAT/0055/12/MAA the EAT rules that a strike out for non-compliance with an unless order is not susceptible to an appeal. The proper course is to appeal against the unless order itself.
The Claimant brought claims of constructive unfair dismissal and disability discrimination arising from his resignation in September 2008. The claim was delayed at various stages by the Claimant’s psychiatric illness which was said to have arisen from the termination. Three unless orders were made. The first, which was by consent, was found to have been drafted defectively by the Employment Judge so not held to have resulted in an automatic strike out. The second was complied with. The third was made on 20 September 2011 when the Claimant failed to attend on the first day of trial. An unless order was made for the service of witness statements by the Claimant. An extension was later sought and granted but a request for the order to be revoked was refused. The order was not complied with and the claim was struck out pursuant to rule 13(2) (automatic strike out for non compliance).
An appeal was lodged against the automatic strike out rather than the unless order or the refusal to revoke it. No application for relief from sanction was made to the ET. Although an application was made to amend the grounds of appeal to challenge the original unless order this was refused and the appeal was pursued in the manner of an application for relief from sanction under rule 10(2)(n) (general power to vary or revoke orders) or 34(3)(e) (review of judgments in the interests of justice).
The EAT (HHJ Clarke) confirmed there was no exercise of discretion in the strike out (see EB v BA UKEAT 0139/08/DM). It was argued there was power to conduct the appeal as if it was an application for relief from sanction pursuant to section 35 Employment Tribunals Act 1996 (EAT may exercise any of the powers of the ET from whom the appeal was brought). This was rejected on the basis that no application had been made to the ET in the first instance. Since there was no discretion in the automatic strike out there was nothing from which to appeal and the appeal was dismissed.