Royal Bank of Scotland v Abraham

Factual and Procedural Background

The case concerns an appeal against a decision by Employment Judge Willans at the Bedford Tribunal following a pre-hearing review on 14 May, with reasons provided on 29 May. The pre-hearing review resulted in the striking out of the Respondent's claims for sex discrimination, while the unfair dismissal claim was allowed to proceed. This followed an earlier unless order issued on 20 February, which the Appellant contended had been wholly disregarded. The Employment Judge found partial non-compliance, thereby splitting the order and permitting the unfair dismissal claim to continue.

The Respondent was employed by Company A from 1993 until dismissal in February 2008 on grounds of performance and conduct. The Respondent lodged claims for unfair dismissal, disability discrimination, and sex discrimination on 1 May 2009. The Appellant responded on 3 June 2009.

Case management orders issued on 16 October 2008 required the Respondent to provide various particulars and disclosures by specified deadlines. Non-compliance led to a hearing on 10 February 2009, which the Respondent did not attend, resulting in an unless order issued on 20 February 2009. This order required the Respondent to provide an account by 10 March 2009 explaining why the claims should not be struck out for failure to comply.

On 10 March 2009, the Respondent attempted compliance and withdrew the disability discrimination claim. The Appellant maintained there was non-compliance and requested a hearing, which took place in May 2009. The Employment Judge found non-compliance regarding sex discrimination, striking out that claim, but allowed the unfair dismissal claim to continue due to partial compliance. The sex discrimination claim was also found to be time-barred.

Leave to appeal was granted by Judge [Last Name] on 15 July 2009.

Legal Issues Presented

1. Whether an Employment Judge has discretion to allow part of a claim to proceed after finding partial non-compliance with an unless order.
2. Whether the sanction of striking out a claim under an unless order takes automatic effect upon any non-compliance, without the need for further application or hearing.
3. The procedural requirements and availability of relief from sanctions following non-compliance with an unless order.

Arguments of the Parties

Appellant's Arguments

• Once partial non-compliance with an unless order is established, the order should automatically take effect, resulting in strike-out.
• There is no discretion for the Employment Judge to split claims or allow partial compliance to avoid strike-out.
• No application for review or relief from sanctions was made by the Respondent, so the sanction should apply immediately.
• The purpose of the May hearing was solely to determine compliance, not to exercise discretion.
• Relief from sanctions requires a formal application under the relevant procedural rules, which was absent.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the wording and purpose of the unless order issued on 20 February 2009. It noted the order required the Respondent to provide facts explaining why the claims should not be struck out for non-compliance. The court acknowledged the Appellant's argument that this language referred back to original case management orders and confirmed that the unless order imposed an automatic sanction upon failure to comply.

The court considered whether the Employment Judge had the power to split the claims and allow partial compliance to suffice. It concluded that the Employment Judge erred in exercising discretion to keep the unfair dismissal claim alive after finding partial non-compliance. The unless order's sanction of strike-out applies automatically upon any material non-compliance unless relief is sought.

The court relied heavily on the Court of Appeal decision in Marcan Shipping, which established that unless orders operate automatically and that relief from sanctions must be sought by formal application under the Civil Procedure Rules. Since no such application was made by the Respondent, the court found no basis to override the automatic effect of the unless order.

The court also addressed whether it should have considered relief from sanctions sua sponte but concluded that without an application, the court was not obliged to do so. The Respondent was advised that any application for review and relief must be made promptly and was informed of the time limits and procedural requirements.

Holding and Implications

The court ALLOWED THE APPEAL to the extent that the unfair dismissal claim, previously permitted to proceed, is now struck out due to partial non-compliance with the unless order.

The decision means that both the sex discrimination and unfair dismissal claims are struck out unless the Respondent applies for review and relief from sanctions within the stipulated time frame. No new legal precedent was established; rather, the court reaffirmed established procedural principles regarding the automatic effect of unless orders and the necessity of applying for relief from sanctions.