Charlie Forrest v Amazon Web Services EMEA SARL UK Branch [2025] EAT 81

[2025] EAT 81Case No EA-2023-000869-AS
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building,, Fetter Lane, London EC4A 1NLDate 10 June 2025
Before
THE HONOURABLE MR JUSTICE GRIFFITHS
Between
MR CHARLIE FORRESTAppellantAMAZON WEB SERVICES EMEA SARL UK BRANCHRespondent
Ms Olivia-Faith Dobbie (via Advocate) for AppellantMr Mark Humphreys (instructed by Taylor Wessing) for RespondentHearing Hearing date: 15 May 2025
JUDGMENT
[1]This is an appeal against an order of EJ Adkin in the London Central Employment Tribunal which struck out all the Appellant’s claims on 14 July 2023.[2]The claims were struck out pursuant to Rule 37 of the ET Rules of Procedure 2013 (now replaced, but in substantially the same terms, by Rule 38 of the ET Rules of Procedure 2024) because of the Appellant’s non-compliance with an order.[3]The order in question was an order made by EJ Burns on 4 April 2023 that the Appellant should “send the respondent a completed list of issues”. The deadline for compliance was (after an extension of time granted because of the ET’s own failure to issue the order) 16 June 2023.[4]For this appeal only, the Appellant has had the benefit of Counsel acting pro bono, through the free representation charity Advocate. I am grateful to her and her colleagues for their work; and also to Counsel for the Respondent.

Procedural background

[5]The Appellant filed a Claim Form on 17 November 2022, while still employed by the Respondent, alleging direct disability discrimination, indirect disability discrimination, discrimination arising from disability, a failure to make reasonable adjustments, harassment, victimisation and whistleblowing detriment. He also claimed, not as a cause of action, but in relation to remedy, that he had suffered personal injury including psychiatric injury. The disability in question was “severe hyperkinetic disorder (Attention Deficit Hyperactive Disorder, ADHD), a long term chronic condition”.[6]With the Claim Form, he provided Particulars of Claim which set out a clear chronological account of the events and circumstances upon which he based his claim. This was rightly described by EJ Adkin as “cogent and well written”. He had some help from a legally qualified relation but only when he began his work on this. He completed it by himself, without further assistance, as a litigant in person.[7]The Respondent filed a Response Form (ET3) and Grounds of Resistance.[8]A case management hearing took place on 4 April 2023, before EJ Burns. The Appellant was in person. The Respondent was represented by Counsel.[9]EJ Burns said, rightly, that the Appellant’s Particulars of Claim document was “very articulate and sets out a clear factual background”. However, she thought it was not possible to work out from it “the precise allegations that the claimant wishes to pursue”. She therefore ordered him to send the Respondent a completed list of issues, using a framework contained in the appendix to her order. That framework was a List of Issues compiled by the Respondent, on the basis of the Particulars of Claim and Grounds of Resistance, with prompts in square brackets for the Claimant to complete (“the Respondent’s List of Issues”). The deadline EJ Burns set for this was 2 May 2023.[10]The Respondent’s List of Issues (attached to and incorporated into the order of EJ Burns) was structured under the following headings: i) “Discrimination: preliminary matters” (paras 1-3). This took issue with whether the Appellant was a disabled person within the meaning of section 6 of the Equality Act 2010. It noted that the Appellant relied on ADHD. It asked the Appellant “to specify any other impairments” i.e. (presumably) any in addition to those actually pleaded. It also took limitation points. ii) “Direct discrimination” (para 4-6). This identified issues about whether the Appellant was subjected to less favourable treatment because of his disability. It asked him “to set out acts or omissions in the Particulars of Claim relied upon in respect of direct discrimination”. It was not, therefore, asking him to add further primary facts. It was asking him to do more by way of legal analysis: identifying, from the facts already stated, which of them should be read as (allegedly) constituting direct discrimination. It also asked the Appellant to name a comparator or comparators or say whether he relied upon a hypothetical comparator. The Particulars of Claim undoubtedly claimed direct discrimination (under section 13 of the Equality Act 2010) but I was told at the appeal hearing that the Appellant is no longer pursuing direct discrimination claims pursuant to section 13 (as opposed to claims of discrimination arising from a disability, pursuant to section 15). iii) “Discrimination arising from a disability” i.e. pursuant to section 15 of the Equality Act 2010 (paras 7-9). This identified issues about whether the Appellant was subjected to unfavourable treatment because of something arising in consequence of his disability and, if so, whether the Respondent could discharge the burden of showing the treatment was a proportionate means of achieving a legitimate aim. It asked the Appellant “to set out acts or omissions in the Particulars of Claim relied upon in respect of discrimination arising from a disability” and to specify “the something arising from disability relied upon”. Again, therefore, it was asking for legal analysis of the primary facts already pleaded chronologically in order to show how they should be mapped on to this particular cause of action. iv) “Harassment” i.e. pursuant to section 26 of the Equality Act 2010 (paras 10-12). This set out the harassment issues, arising from two dated matters already understood by the Respondent to be pleading unwanted conduct. It asked the Appellant to identify “any other matters in Particulars of Claim relied upon as disability harassment” (para 10.c.). v) “Failure to make reasonable adjustments” i.e. pursuant to section 21 of the Equality Act 2010 (paras 13-16). This set out the section 20 and 21 issues, including one specific Provision, Criterion or Practice (PCP) pleaded in the Particulars of Claim, which was the requirement that the Appellant should work normal hours of 8.30 am to 5.30 pm Monday to Friday. The only question put to the Appellant was “to identify any other PCPs in the Particulars of Claim relied upon”. As before, therefore, it was asking whether primary facts already pleaded should be specifically allocated to this head of claim, which was also already pleaded. vi) “Indirect discrimination” i.e. pursuant to section 19 of the Equality Act 2010 (paras 17-21). This set out the indirect discrimination issues. It identified, in this respect, the same PCP, namely the requirement that the Appellant should work normal hours of 8.30 am to 5.30 pm Monday to Friday. It asked the Appellant to say whether there were “any other PCPs in the Particulars of Claim relied upon”. vii) “Victimisation” i.e. pursuant to section 27 of the Equality Act 2010 (paras 22-23). This set out the victimisation issues about whether there was a protected act on the Appellant’s part and whether he was subjected to a detriment because he had done it. It asked the Claimant “to specify any matters in the Particulars of Claim said to be a protected act” and “to identify matters in the Particulars of Claim relied upon as a detriment”. This was, again, not asking for new primary facts, but for the allocation of already pleaded facts to this pleaded cause of action. viii) “Whistleblowing detriment” i.e. conduct rendered unlawful by the Public Interest Disclosure Act 1998 amendments to the Employment Rights Act 1996 (paras 24-30). These paragraphs set out the issues arising from the Appellant’s whistleblowing claims under the 1996 Act, including whether the claims were out of time, whether there had been protected disclosures, and whether the Appellant was subjected to detriment on the ground that he had made protected disclosures. A number of specific, dated, protected (or allegedly protected) disclosures were identified from the existing Particulars of Claim. The Appellant was, however, asked to provide detail about allegations of disability discrimination made in a complaint by the Appellant to the Respondent’s Ethics Line on 4 August 2021. He was also asked, in respect of every alleged protected disclosure, to specify the legal obligation relied upon. He was also asked to “specify the matters in the Particulars of Claim relied upon as whistleblowing detriment”.[11]A number of other matters were established or ordered at the Case Management Hearing before EJ Burns on 4 April 2023. i) The Appellant was ordered to send all his GP medical notes and specialist reports to the Respondent. The deadline was 19 May 2023. ii) The Appellant was ordered to send an impact statement to the Respondent. The deadline was, again, 19 May 2023. It was envisaged by EJ Burns’ order that this might be complied with by the Appellant referring back to documents already supplied to the Respondent by the Appellant. iii) EJ Burns noted that the Appellant had issued an application dated 18 January 2023 to strike out the Respondent’s case, under rule 37(1)(e) of the Employment Tribunal Rules, and that he had asked her to list it for hearing. She refused to do that; thereby depriving the Appellant of a decision on it before the case proceeded, although the basis of the application was that the Respondent would have an unfair advantage because of a commercial relationship between the Respondent and the Ministry of Justice. The reason that EJ Burns gave for this was that she considered the application to lack merit and she therefore considered it would be disproportionate for there to be a preliminary hearing to rule upon it and would put the Respondent “to unnecessary expense”. She noted that the Appellant had given a clear indication that he would be appealing that decision not to list his application for preliminary hearing, and she suggested that he might apply for a stay in that event, whilst also indicating that her “current view” was that a stay ought not to be granted. She set a deadline for any application for a stay, which was, again, 19 May 2023. iv) EJ Burns ordered a further hearing, of one day, to take place on 31 May 2023, for the purposes of case management, and to consider “any applications that either party wish to make on or before 19 May 2023”. But she expressly excluded consideration of the Appellant’s existing application to strike out from this hearing.[12]The upshot of the hearing before EJ Burns on 4 April 2023 was, therefore, to set three key dates. i) The Appellant was ordered to send a completed list of issues, using the Respondent’s List of Issues as a framework, by 2 May 2023. ii) The Appellant was ordered to do a number of other things, which I have set out above, by 19 May 2023. iii) A one-day hearing was fixed for 31 May 2023.[13]However, on 23 May 2023, EJ Burns wrote to the parties stating that she had become aware that the orders she had made orally at the hearing on 4 April 2023 (drawn up in writing on the same date) had not been sent out to the parties. She said this was likely to be her fault, and apologised. As a result, on 26 May 2023, she replaced the original dates with new dates, as follows: i) The Appellant was ordered to send the completed list of issues, using the Respondent’s List of Issues as a framework, by 16 June 2023 (instead of 2 May). ii) The deadline for the Appellant to give disclosure and an impact statement was extended from 19 May 2023 to 7 July 2023. iii) The one-day hearing was moved from 31 May 2023 to 14 July 2023.[14]EJ Burns noted, in the order she sent out on 26 May 2023, that the Appellant had applied for a stay (an application she had ordered him to make, if at all, by 19 May 2023). She refused it, “as she sees no reason why the Claimant cannot provide the further particulars sought at the current time”. She continued:
“For the avoidance of doubt, the Claimant is therefore required to comply with the case management orders by the extended deadline and, if he does not, it is likely that his claim will be struck out at the hearing.”
[15]In the run up to the re-fixed hearing on 14 July 2023, the Appellant, who was still acting as a litigant in person, was faced with a number of new challenges, in addition to the obligations imposed on him by the orders of 4 April and 26 May 2023 which he had to comply with by 16 June and 7 July: On 15 June 2023, the Respondent dismissed him. This became the subject of separate ET proceedings, which the Respondent received on 14 July 2023. The Appellant applied, in those new proceedings, for interim relief. i) On 2 July, and on 5 July, the Appellant lodged appeals with the Employment Appeal Tribunal. These pursued his application for a stay. He also pursued an application for a stay at the hearing on 14 July 2023. ii) The Appellant made an application for specific disclosure against the Respondent, to be heard on 14 July.[16]On 7 July 2023, the Respondent applied to strike out his original claims, on the grounds of non-compliance with orders. This was only one week before the hearing fixed for 14 July. After 7 pm on 13 July 2023 – the eve of the hearing on 14 July 2023 – the Respondent’s solicitors emailed the ET and the Appellant a 9 page written submission in support of its application to strike out all the Appellant’s claims (not including the new claims made as a result of his dismissal). This included a number of submissions of law.[17]The Respondent’s application dated 7 July 2023, supported by its written submissions dated 13 July 2023, and pursued at the hearing on 14 July 2023, was for the following: i) The striking out of all the Appellant’s claims, on the ground of “scandalous, unreasonable or vexatious conduct of proceedings” and “non-compliance with Tribunal orders”. The Respondent submitted, also, that the Appellant’s “willingness to pursue his own applications” and failure to comply with the orders of EJ Burns, demonstrated “an intentional and contumelious failure to pursue his claim”. ii) In the alternative, the Respondent sought unless orders under Rule 38(1) of the 2013 Rules which provided “An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order.” A deadline of two weeks was suggested. iii) The Respondent’s written submissions also resisted any application by the Appellant for a stay.[18]The hearing took place before EJ Adkin sitting alone on 14 July 2023. As before, the Appellant appeared as a litigant in person. The Respondent was represented by Counsel. The Appellant, because of his disability, required adjustments, and there was a 15 minute break every 45 minutes accordingly.[19]At the conclusion of the hearing on 14 July, EJ Adkin made the order now appealed against. It struck out all the Appellant’s claims in these proceedings. EJ Adkin had, in the course of the hearing, refused the Appellant’s renewed application for a stay of proceedings and he had also refused the Appellant’s application for specific disclosure.[20]The grounds for the striking out, stated in the order dated 14 July, were “that the Claimant has failed to comply with Tribunal orders”.

Written reasons

[21]EJ Adkin followed up an oral judgment given on 14 July with written reasons sent to the parties on 20 July (“the Reasons”).[22]The Reasons identified the relevant failure to comply with Tribunal orders as the Appellant’s failure to comply with the order of EJ Burns for further particulars in the form of a response to the Respondent’s Draft List of Issues.[23]On the question of strike out, the Reasons cited the judgment of Sedley LJ in Blockbuster Entertainment Ltd v James [2006] IRLR 630 which were summarised (I think incorrectly), in para 32 of the Reasons, thus:
“There are essentially two points; it is noted that strike out is a draconian sanction and in order for there to be a strike out (i) there needs to be either a deliberate and persistent disregard of required procedural steps or (ii) no fair trial is possible.”
[24]As well as referring, specifically, to the case of Blockbuster Entertainment Ltd v James [2006] IRLR 630, the Reasons also said that the Respondent’s written submissions provided “a correct statement of the law”. The cases cited in the written submissions included Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190, [2010] IRLR 124, at para 59 (a case about breach of an unless order); Emuemukoro v Croma Vigilant [2022] ICR 327, at para 19; Weir Valves & Controls (UK) Ltd v Armitage [2003] ICR 371; Harris v Academics Enterprise Trust [2015] IRLR 208, at para 26, and Rolls Royce PLC v Riddle [2008] IRLR 873, at paras 19, 20 and 35.[25]The Reasons also cited the Presidential Guidance on Case Management 2018 paras 8-9 and 11-12, including the observation that “The Tribunal does not use these powers lightly”.[26]The Reasons considered and decided against making an unless order (under Rule 38 of the 2013 Rules, now replaced by Rule 39 of the 2024 Rules) in the following passage:
“Unless Order 52. I did consider carefully in this case making an Unless Order. 53. This was in part on the basis that the Claimant showed some willingness in this hearing to engage with the questions of providing completing medical evidence and providing a form of authority for his private doctor. There are some medical documents in the Claimant's bundle, but not a GP record or impact statement that he had been ordered to provide. 54. If it were just a question of providing more time for the medical evidence and statement an unless order would have been appropriate. The difficulty is that the Claimant is continuing to refuse to provide the details of his claim to enable the list of issues to be refined and he says that he cannot do so due to the circumstances relating to the reasons for his appeal i.e. that the Respondents have unfair access to his documents. 55. I considered carefully whether the Claimant was struggling to understand what is required of him. I bear in mind that disability discrimination is not a completely straightforward area of law. 56. For four reasons however I have decided that it is not the lack of understanding which has led to the Claimant's default. First, he indicated to Judge Burns in the hearing in April that he knew what he needed to do. Second he has not written in at any stage either to the Tribunal or to the Respondent to say that he is struggling to understand the nature of the exercise that he needed to do in relation to the issues. Third I bear in mind that the claim form and particulars are well written and well structured, the Claimant confirmed in this hearing he had produced it himself although he had had some assistance. The parts where additional detail is required are highlighted plainly in yellow as part of the structured draft list of issues provided by the Respondent and then sent out by Employment Judge Burns. I do not consider that the Claimant is incapable of carrying out this exercise. 57. Fourthly and finally, I twice offered the Claimant in this hearing the opportunity to refine the list of issues during the course of this hearing by discussing it. He did not take up either of those offers but continued to explain that he could not "reveal data". 58. I therefore concluded that this is not a case of the Claimant not being able to provide the further particulars but that as a matter of principle he will not provide the particulars being requested.”
[27]EJ Adkin then gave his Reasons for striking out all the claims as follows:
“Strike Out 59. In my analysis there has been a persistent and deliberate delay by the Claimant although I accept there are reasons for it. 60. Employment Judge Burns gave an extension of the original deadline, she warned him that strike out was "likely" and that and the failure of the Claimant to respond led to the Respondent making the current application. 61. Even at this hearing the Claimant is not saying that he will provide the particulars and requesting further time, he is continuing to refuse to do so and in those circumstances there is no benefit in making an Unless Order which in my view will simply lead to further expense and delay which runs counter to the overriding objective. For those reasons I consider that is proportionate to strike out the claim and I do so.”

Grounds of Appeal

[28]The Grounds of Appeal are(1) that EJ Adkin applied the wrong legal test to the question of strike out;(2) he failed to ask himself the central question of whether a fair hearing was still possible, and it in fact was still possible; and(3) he did not take sufficient account of the Appellant’s status as a litigant in person and as a disabled person with complex ADHD.[29]The Respondent’s Answer relies on the Reasons given by EJ Adkin and argues that he did not err in law. It also repeats and re-adopts the written submissions placed before EJ Adkin.[30]These submissions were amplified and developed in oral submissions before me.

The law

[31]By far the most helpful and relevant case to which I was referred was the decision of Simler J, as President of the EAT, in Baber v Royal Bank of Scotland plc UKEAT/0301/15 (18 January 2018). Baber was a case, like this one, in which claims were struck out under Rule 37 of the 2013 Rules on the basis of non-compliance with orders made at a case management hearing.[32]At paras 11-13, Simler J said, after quoting the words of Rule 37: “11. (...) As is clear, non-compliance with Tribunal Rules or a Tribunal order is an express ground for a strike out decision; and can lead to striking out the whole or part of the claim or response. However, and critically, there is nothing automatic about a decision to strike out and such orders are not punitive. 12. It is common ground and accepted by Mr Campbell that in deciding whether to strike out a party’s case for non-compliance, Tribunals must have regard to the overriding objective of seeking to deal with cases fairly and justly. That is the guiding principle and requires consideration of all the circumstances and, in particular, the following factors: the magnitude of the non-compliance; whether the failure was the responsibility of the party or his or her representative; the extent to which the failure causes unfairness, disruption or prejudice; whether a fair hearing is still possible; and whether striking out or some lesser remedy would be an appropriate response to the disobedience in question. 13. Even in a case where the impugned conduct consists of deliberate failures in relation, for example, to disclosure, the fundamental question for any Tribunal considering the sanction of a strike out is whether the parties’ conduct has rendered a fair trial impossible: see Bolch v Chipman [2004] IRLR 140 EAT where, having cited De Keyser v Wilson [2001] IRLR 324 EAT and Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200, Burton P set out guidance for Tribunals when determining whether or not to make a strike out order, as follows:(i) There must be a finding that the party is in default of some kind, falling within Rule 37(1).(ii) If so, consideration must be given to whether a fair trial is still possible and save in exceptional circumstances, if a fair trial remains possible, the case should be permitted to proceed.(iii) Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed.(iv) If strike out is the only proportionate and fair course to take, reasons should be given why that is so. See also James v Blockbuster Entertainment Ltd [2006] IRLR 630 CA to similar effect, where Sedley LJ recognised the draconian nature of the strike out power and that it is not to be readily exercised. He held, even where the conditions for making a strike out order are fulfilled, it is necessary to consider whether the sanction is a proportionate response in the particular circumstances of the case, and the answer to that question must have regard to whether the claim can be tried because time remains in which orderly preparation can take place, or whether a fair trial cannot take place.” (i) There must be a finding that the party is in default of some kind, falling within Rule 37(1). (ii) If so, consideration must be given to whether a fair trial is still possible and save in exceptional circumstances, if a fair trial remains possible, the case should be permitted to proceed. (iii) Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed. (iv) If strike out is the only proportionate and fair course to take, reasons should be given why that is so.[33]Baber sets out all the relevant legal principles conveniently in one place. It makes reference to the other cases unnecessary. Although Weir Valves & Controls (UK) Ltd v Armitage [2003] ICR 371 is not referred to by name, it is reflected in para 13 of Baber.

Decision

[34]I do not think the judge was right to proceed straight from an order which had no sanctions attached to it, to striking out the Appellant’s claims, without at least trying the effect of an unless order.[35]If an unless order had not been complied with, the case would have been struck out automatically, and the avoidance of expense and delay which the judge envisaged would have been achieved anyway. But if it had been complied with, a fair hearing was certainly possible. The proceedings were at an early stage. No final hearing had even been listed. There was, in fact, a draft list of issues in existence. The Appellant’s pleadings were clear and chronological, and on the face of it pleaded all the primary facts upon which he relied in some detail already. Whilst greater refinement of legal analysis was, no doubt, desirable, this was a litigant in person, and to say that if it were not provided the whole claim must be dismissed was to throw the baby out with the bathwater.[36]The judge did not at any stage consider or weigh in the balance whether it was possible to have a fair trial. This undermines both his reasoning and his decision. He seems, in paragraph 32 of his Reasons, to have seen the two possible bases for the “draconian sanction” of striking out which he articulated as alternative to each other. He said “(i) there needs to be either a deliberate and persistent disregard of required procedural steps or (ii) no fair trial is possible”. The use of either/or is troubling, and explains why he went on only to base his decision on his point (i), the “deliberate and persistent” breach of the order, without looking at the impact of point (ii). This was an error of law. The passage from the judgment of Simler J in Baber, which I have quoted, repeatedly stresses, as did the earlier cases which it cites, that whether or not a fair trial is possible is always an important consideration and often the most important, even in a case (as Simler J puts it at para 13 of Baber) “where the impugned conduct consists of deliberate failures”. The Reasons do not sufficiently engage with the Baber factors. The possibility of a fair trial was not considered at all.[37]The Appellant was very far from indicating contempt for the proceedings, or a lack of willingness to engage actively with them. He had been making his own applications and exercising his own right to pursue appeals. He had a pending application for a stay, which was subject to appeals to the Employment Appeal Tribunal, and a fresh application for a stay which was considered and dismissed at the hearing on 14 July itself. He had, as the judge recognised, complied with other parts of the directions, the focus of the strike out being on the List of Issues.[38]The timing I have set out is rather startling. No account should have been taken of the failure to comply with the original deadline set by EJ Burns, because EJ Burns had herself set that deadline aside, on the basis that there had been an administrative failure, for which the Appellant was in no way responsible, making an extension of time necessary in the interests of justice. This substantially undercut the finding of EJ Adkin that the Appellant’s breach to date constituted “a persistent and deliberate delay by the Claimant”, quite apart from the fact that he immediately acknowledged that “there are reasons for it”.[39]The extended deadline for compliance was 16 June 2023. The judge was therefore striking out the claims only four weeks after expiry of the deadline. The strike out application had been issued only a week before. The argument upon which it was based had been filed, effectively, on the day of the hearing. Given everything that the Appellant was having to deal with at this time (including his recent dismissal, and the proceedings he was lodging in respect of that), to go, from the Respondent’s first application to strike out, to actually striking out, in the space of seven days, looks very rushed. The Appellant was a litigant in person. He was disabled to the extent that at the hearing there had to be very frequent breaks. The rigour and lack of patience demonstrated by the decision to strike out all his claims at the hearing on 14 July would not have been appropriate even in the case of a represented person. But the Appellant was a litigant in person, and he was also under a disability recognised by the judge when allowing breaks of 15 minutes in every hour.[40]The judge placed some reliance on the warning given by EJ Burns when extending time that, if he did not comply with it, it was “likely” that his claim would be struck out. However, this was not an unless order. It could not be treated as equivalent to an unless order. It was also made by a judge who had refused a stay, or a hearing about the stay, and whose decision in that respect was under appeal.[41]The salutary effect of an unless order is that it so clearly concentrates the mind. It provides that, unless there is compliance, strike out will follow automatically and without a hearing. That is a stark choice, which in many cases does result in compliance. In the present case, when the Appellant found that all his claims were entirely dismissed because of failure to comply with a case management order, rather than on their merits, he was able to obtain legal representation and he has now, in fact, filed a 24-page draft List of Issues in response to the Respondent’s. This confirms, albeit after the event, that there should have been much greater optimism on the part of the judge about the possible effect of an unless order in securing compliance. The judge thought it was pointless and hopeless. But he was wrong not to give it a try. There was no good reason not to. The judge recognised that the Appellant was able to comply. He doubted his willingness. The need, therefore, was to apply pressure to see if it would persuade the Appellant to change his mind. That is exactly what an unless order would have done.[42]It is hard to think of a case in which it would be right to go directly from non-compliance with a case management order to striking out for non-compliance, without first trying the effect of an unless order. It is usually best to ratchet up pressure, rather than immediately giving up. The business of courts and tribunals is deciding cases on their merits when a fair trial is possible. Sanctions for breaches of orders are designed to secure compliance. As Simler J said in Baber, “they are not punitive”.[43]For these reasons, the appeal must be allowed.

Disposal

[44]Counsel for both parties asked me, if I decided to allow the appeal, to substitute my own decision for the one under appeal, rather than remitting the matter for reconsideration.[45]My decision and, I think, the only reasonable decision on the facts of the case, would have been to make an unless order rather than proceeding immediately to strike out. This was, indeed, what the Respondent suggested as an alternative in the written submissions to the Employment Tribunal.[46]However, as I have said, the Appellant has now provided a draft List of Issues. There is no need for an unless order.[47]The full hearing of the Appellant’s later claim following his dismissal by the Respondent is listed to take place between 12 June and 1 August this year, sitting four days a week. The reinstatement of his original claim, as a result of the success of this appeal, is not a reason for that hearing to be vacated or delayed in any way. On the contrary, it is very important in the interests of justice and in accordance with the overriding objective that it proceeds as planned, notwithstanding the success of this appeal. It is two years since the Respondent dismissed the Appellant, in June 2023, and a listing of this length cannot easily be refixed.[48]I can see that the outcome of that hearing may assist in the resolution of the earlier proceedings, which I am now reinstating, in a number of ways. It may facilitate settlement. It may decide issues which do not, therefore, require further decision in the earlier proceedings (such as the disputed issue about whether the Appellant has a qualifying disability). It may make some of the earlier claims redundant, on account of overlap with issues and remedy claims in the later proceedings.[49]I am also conscious that both the Appellant and the Respondent will be facing considerable demands in the run up to the forthcoming hearing, and during it.[50]Therefore, and with the agreement of the parties, the order I will make consequent upon my decision to allow this appeal is that the Respondent should respond to the Appellant’s draft List of Issues within seven days of the date of this judgment. After that, a further case management hearing should take place before the Employment Judge (sitting alone) who is to hear (with members) the forthcoming full merits hearing of the later claims. He or she will by then be familiar with the case, and will understand the relationship between the later claims and the current claims. He or she will therefore be well placed to conduct that case management at an appropriate time, which may be at or after the conclusion of the forthcoming hearing of the later proceedings.

Cited in 5 later judgments