Reviewability of Automatic Strike-Outs under Rule 13(2): Insights from Neary v. St Albans Girls' School: United Kingdom Employment Appeal Tribunal

Introduction

The case of Neary v. St Albans Girls' School & Anor ([2009] UKEAT 0281_08_0901) adjudicated by the United Kingdom Employment Appeal Tribunal (EAT) on January 9, 2009, addresses critical procedural aspects within Employment Tribunal proceedings. Mr. Neary, the claimant, appealed against an Employment Appeal Tribunal (EAT) order and substantive orders made by Employment Judge Mahoney, which included an automatic strike-out of his claim for non-compliance with a tribunal order. This commentary delves into the judgment's implications on the procedural rules governing the reviewability of automatic strike-out orders under Rule 13(2) of the Employment Tribunal Rules.

Summary of the Judgment

Mr. Neary initiated proceedings alleging disability and sexual orientation discrimination after a supply teaching position was withdrawn. Following procedural delays and non-compliance with tribunal orders, Employment Judge Mahoney struck out Mr. Neary's claim under Rule 13(2) for automatic strike-out due to non-compliance with an 'unless' order. Mr. Neary appealed this decision, contesting both the procedural handling and the substantive grounds for strike-out. The EAT found that the strike-out order was procedurally flawed as it did not adhere to the correct process stipulated by the Employment Tribunal Rules and the Civil Procedure Rules (CPR), particularly regarding the provision for relief from sanctions under CPR Part 3.9.

Analysis

Precedents Cited

The judgment extensively discusses several precedents that shape the understanding of procedural compliance and the reviewability of strike-out orders:

Uyanwu - Odu v Schools Office Services Ltd ([2005] UKEAT/0294/05/ZT): This case established that automatic strike-out orders under Rule 13(2) are capable of review under Employment Tribunal Rules 34-36 as they constitute a final determination of proceedings.
EB v BA (UKEAT 0139 and 0138/08/DM): Reinforced the view that automatic strike-outs can be subject to review, aligning with the principles in Uyanwu - Odu.
Maresca v Motor Insurance Repair Research Centre [2005] ICR 197: Highlighted the necessity for Employment Judges to consider all relevant factors under CPR 3.9 when deciding on relief from sanctions.
Bansal v Cheema (CCRTI 99/1245/B1, 2 March 2000): Emphasized the systematic consideration of factors listed in CPR 3.9(1) during the discretion to grant relief from sanctions.
Jones v Williams [2002] EWCA Civ 897: Underlined that omission of material factors from CPR 3.9(1) in the reasons can lead to the appeal being allowed.
Dobie v Burns International [1984] ICR 812: Cited for the principle that summary dismissal of applications without proper consideration may be erroneous.

These precedents collectively reinforce the necessity for Employment Judges to diligently apply procedural rules, ensuring that any strike-out orders are fair, justified, and subject to appropriate review mechanisms.

Legal Reasoning

The crux of Neary's appeal centered on the procedural mishandling of the automatic strike-out order. Judge Mahoney had treated Mr. Neary's subsequent communication as an application for review of the strike-out. However, the EAT identified several procedural deficiencies:

The strike-out under Rule 18(7)(e) was improperly issued without adhering to Rule 18(6), which stipulates that such orders can only be made at a Preliminary Hearing Review (PHR) or a formal hearing, neither of which occurred.
There was a lack of proper notice under Rule 19(1) before the strike-out order was enacted.
The consideration of CPR 3.9(1) factors was insufficient, as Judge Mahoney failed to address key elements such as the claimant's explanation for non-compliance and the impact of granting relief on both parties.

The EAT, referencing Uyanwu - Odu and EB v BA, concluded that the automatic strike-out under Rule 13(2) is indeed reviewable and that the Employment Judge must comprehensively consider all relevant CPR 3.9(1) factors when deciding on relief from sanctions. The failure to adequately assess these factors rendered the strike-out order procedurally flawed, necessitating its set-aside and a remittance for further hearing.

Impact

This judgment reinforces the procedural safeguards within Employment Tribunal proceedings, particularly emphasizing the reviewability of automatic strike-out orders. Key impacts include:

Enhanced Procedural Fairness: Employment Judges are mandated to thoroughly consider all relevant factors under CPR 3.9 when reviewing automatic strike-out orders, ensuring decisions are just and equitable.
Precedential Clarity: The decision clarifies that automatic strike-outs under Rule 13(2) are subject to review, aligning Employment Tribunal practice with broader Civil Procedure Rules principles.
Guidance for Legal Practitioners: Lawyers representing claimants must now be more vigilant in ensuring that their clients receive fair consideration when facing strike-out orders, providing robust explanations for any non-compliance.
Tribunal Practice Adjustments: Employment Tribunals may need to revise their procedural approaches to strike-out orders, ensuring compliance with both Employment Tribunal Rules and CPR requirements.

Overall, the judgment upholds the integrity of the Employment Tribunal system by safeguarding claimants' rights to a fair process, especially in instances of procedural non-compliance.

Complex Concepts Simplified

The judgment navigates several intricate procedural rules and legal concepts. Below are simplified explanations to aid comprehension:

Rule 13(2) Automatic Strike-Out: This rule allows an Employment Tribunal to automatically dismiss a claimant's case if they fail to comply with specific orders, such as providing requested information, without the need for a formal hearing.
Reviewability: This refers to the ability to challenge and have a higher court assess the correctness of a decision made by a lower tribunal or judge.
CPR Part 3.9 – Relief from Sanctions: A set of guidelines under the Civil Procedure Rules that courts must consider when deciding whether to excuse a party's failure to comply with procedural rules or orders. It includes factors like the reason for non-compliance and the impact on the other party.
Unless Order: A directive from the tribunal requiring a party to do something by a specific date, failure to which may result in sanctions like strike-out of the claim.
Final Determination: The final decision in a case, which concludes the legal proceedings. In this context, an automatic strike-out becomes a final determination if not properly reviewed.

Understanding these concepts is crucial for comprehending the procedural integrity emphasized in the judgment.

Conclusion

The Neary v. St Albans Girls' School judgment serves as a pivotal reference for the procedural scrutiny within Employment Tribunal proceedings. By affirming the reviewability of automatic strike-out orders under Rule 13(2) and mandating adherence to CPR Part 3.9, the EAT underscores the necessity for fairness and comprehensive judicial consideration in procedural matters. This decision not only rectifies the specific procedural lapses in Mr. Neary's case but also sets a robust precedent ensuring that claimants are afforded equitable treatment, thereby enhancing the overall integrity and reliability of the Employment Tribunal system.

Reviewability of Automatic Strike-Outs under Rule 13(2): Insights from Neary v. St Albans Girls' School