The claims are struck out for failure to comply with the express terms of the Unless Order made on 25 June 2025. They would, otherwise, be struck out under Rule 38 on the basis that the conduct of the case has been unreasonable and because in all the circumstances, a fair trial is no longer possible. At the conclusion of the hearing on 8 August 2025, I gave oral reasons for my decision to strike out the claims. The Claimant's solicitor, Mr Alukpe, requested full written reasons at the hearing. These written reasons are provided pursuant to that request.
REASONS
[1]The Claimant was employed by the First Respondent as a teacher from approximately 2018 until her employment was terminated in 2024. During her employment, various incidents occurred which form the basis of her complaints, with some allegations dating back to 2021. The employment relationship deteriorated over time, with the Claimant raising concerns about her treatment which she alleges amounted to discrimination and harassment on grounds of race and disability.[2]The Claimant presented her first claim to the Employment Tribunal on 12 April 2024, setting out various complaints against multiple respondents within the United Learning Trust structure. Subsequently, she presented a second claim on a later date, which initially contained extensive allegations dating back to 2021 and earlier, overlapping substantially with matters that should have been included in the first claim if they were to be pursued.
LEGAL FRAMEWORK
[3]The case has been subject to extensive case management difficulties from an early stage. Employment Judge Corrigan made case management orders in September 2024 attempting to resolve pleading deficiencies and requiring the Claimant to clarify and properly particularise her claims. These orders were not satisfactorily complied with, necessitating further case management intervention.[4]At a preliminary hearing on 25 June 2025, I identified serious ongoing problems with the pleadings and case management compliance. The claims remained poorly particularised, the list of issues was inadequate, and there was continuing non-compliance with previous judicial orders. The Respondents faced significant difficulties in understanding the case they were required to meet and in preparing an adequate response.[5]I made specific case management orders on 25 June 2025, including an Unless Order with a deadline of 2 July 2025, designed to require the Claimant to remedy these fundamental defects and bring the case into a manageable state for fair determination by both parties and the Tribunal. COMPLAINTS MADE IN THE CLAIM[6]The Claimant's claims are extensive and encompass multiple forms of discrimination and other statutory complaints. The race-related claims include allegations of direct race discrimination, indirect race discrimination, harassment on grounds of race, and victimisation under the Equality Act 2010. The disability-related claims comprise allegations of direct disability discrimination, discrimination arising from disability, and failure to make reasonable adjustments, also under the Equality Act 2010. Additionally, the Claimant brings a claim for automatic unfair dismissal for health and safety reasons under section 100 of the Employment Rights Act 1996. The Claimant seeks remedies including compensation for injury to feelings, financial losses including past and future loss of earnings, reinstatement or re-engagement, and such other remedies as the Tribunal considers just and equitable. MATTERS ARISING AT THIS HEARING[7]The primary issues before the Tribunal at this resumed hearing were procedural rather than substantive, arising from the case management difficulties that had plagued this case since its inception.[8]The first issue was whether the Claimant had complied with the Unless Order made on 25 June 2025, specifically paragraph 9, which required by 4pm on 2 July 2025:(a) redoing the particulars of the second claim limiting them to matters arising after 12 April 2024;(b) removing all allegations and matters from the second claim dating before 12 April 2024; and(c) correcting and amending the draft list of issues providing proper legal and factual basis for each head of claim.[9]The second issue was whether the Claimant had properly complied with paragraph 14 of the case management orders, which gave permission to apply in writing to amend the first claim, requiring any such application to justify the amendment on time limit basis and under the Selkent principles, with the respondent having 14 days to respond and any application to be considered at the resumed hearing on 8 August 2025.[10]A related issue was the status and validity of documents submitted by the Claimant's solicitor on 6 August 2025, purporting to be an "amended ET1 grounds of the claimant's first claim" and whether this constituted a proper application to amend or an unauthorised attempt to circumvent the proper procedure.[11]The fourth issue was whether the revised list of issues provided adequate legal and factual basis for each head of claim as required by the Unless Order, or whether it merely consisted of cross-references to paragraph numbers in other documents.[12]If the Unless Order had not been complied with, the issue arose as to whether the claims should be automatically struck out pursuant to the terms of that order. Alternatively, whether the claims should be struck out under Rule 38 of the Employment Tribunal Procedure Rules 2024 on grounds that there was no reasonable prospect of a fair trial, or that the proceedings were conducted unreasonably or in a manner calculated to obstruct the just disposal of the case.
THE HEARING
[13]This was a resumed preliminary hearing conducted by video conference using the Cloud Video Platform. The hearing had originally commenced on 25 June 2025 when I made case management orders including an Unless Order and was adjourned to 8 August 2025 for compliance to be reviewed.[14]The Claimant Mrs Mojisola Paul attended and was represented by Mr Alukpe, solicitor. The Respondents were represented by Miss Halsall of counsel. Initial technical difficulties with audio feedback were resolved by having the Claimant and her solicitor share a single connection.[15]I reminded all participants that the hearing was being recorded and that making unauthorised recordings or broadcasts of any part of the proceedings constituted a criminal offence. The hearing proceeded as a case management hearing to review compliance with the previous orders and determine next steps.[16]The bundle prepared for the hearing included the original claims, the case management orders from 25 June 2025, correspondence between the parties, and various iterations of amended pleadings and lists of issues. Particular attention was paid to documents submitted on 6 August 2025 by the Claimant's solicitor.[17]During the hearing, I examined in detail the extent of compliance with each element of the Unless Order, with input from both representatives. The hearing included examination of specific examples from the documentation to illustrate the issues arising. I adjourned the hearing at 12:15pm for judicial consideration before delivering judgment.
THE LAW
[18]The power to make Unless Orders is contained in Rule 39 of the Employment Tribunal Procedure Rules 2024, which provides: "An order may specify that if it is not complied with by the date specified the claim, response or reply, or part of it, must be dismissed without further order. If a claim, response or reply, or part of it, is dismissed on this basis the Tribunal must give written notice to the parties confirming what has occurred."[19]The principles governing Unless Orders were established in cases such as Blockbuster Entertainment Ltd v James [2006] IRLR 630 (EAT) at paras 17-20, 23, where Elias J held: "Where an unless order is made and not complied with, the sanction specified takes effect automatically. The tribunal has no residual discretion unless an application for relief is made within the stipulated period." As to relief from sanction: "A party may apply for relief but the burden rests on them to show that it is in the interests of justice for relief to be granted."[20]The Employment Appeal Tribunal has emphasised that Unless Orders are a draconian procedural tool and should be used sparingly as a last resort. In Mohammed v Guy's and St Thomas' NHS Foundation Trust [2023] EAT 16 at paras 51-53, 60-62, the EAT stressed that such orders must be crystal clear in their requirements and consequences, enabling parties to understand precisely what compliance entails. HHJ Tayler has provided guidance that Unless Orders must be precisely drafted so that compliance or noncompliance can be easily determined, with any ambiguity resolved in favour of the party required to comply, and that consequences must be clear and proportionate.[21]Rule 38(1)(c) of the Employment Tribunal Procedure Rules 2024 provides that "The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply... for non-compliance with any of these Rules or with an order of the Tribunal."[22]In Abegaze v Shrewsbury College of Arts and Technology [2009] UKEAT/0171/09/MAA at para 23, Underhill J held: "Striking out is a draconian measure and should be reserved for cases where there is a persistent and serious default such that a fair trial is no longer possible or the defaulting party has demonstrated a disregard for the Tribunal's process."[23]Bolch v Chipman [2004] IRLR 140 (EAT) at para 35 emphasised: "The Tribunal must consider whether a lesser sanction would suffice and whether the party's conduct has made a fair hearing impossible. Only in extreme cases should a claim be struck out for non-compliance" (per HHJ McMullen QC).[24]In HM Prison Service v Liddle [2006] IRLR 203 (EAT) at para 24, Elias J stated: "Where there is a prolonged and unexplained delay, particularly one that causes prejudice to the other party or undermines the administration of justice, striking out can be justified."[25]The overriding objective contained in Rule 3 requires tribunals to deal with cases fairly and justly, including ensuring that the parties are on an equal footing, saving expense, dealing with cases in a manner proportionate to their complexity and importance, avoiding delay, and ensuring cases are dealt with expeditiously and fairly.[26]While not binding on Employment Tribunals per se, the Court of Appeal's approach in Denton v TH White Ltd [2014] EWCA Civ 906 at paras 24-38 provides a useful structured framework for considering relief from sanctions. The Denton approach requires consideration of:(1) the seriousness and significance of the failure to comply with the order;(2) why the default occurred; and(3) all the circumstances of the case, including the need to deter future non-compliance and the particular importance of the overriding objective. In Mohammed v Guy's and St Thomas' NHS Foundation Trust [2023] EAT 16, the Employment Appeal Tribunal confirmed that while Denton is not directly applicable to Employment Tribunal proceedings, its structured approach can assist tribunals in ensuring comprehensive consideration of relevant factors when determining relief from sanctions applications.[27]The principles governing applications to amend claims are set out in Selkent Bus Co Ltd v Moore [1996] ICR 836 (EAT) at pp 842-843. The Employment Appeal Tribunal established that all amendments to claims or responses require the permission of the tribunal. When considering whether to grant permission to amend, the tribunal should consider all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The relevant factors include:(a) the nature of the amendment - whether it is a minor matter such as the correction of clerical and typing errors, or labels, or whether it is a substantial alteration pleading a new cause of action;(b) the applicability of time limits - if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended; and(c) the timing and manner of the application - an application should not be refused solely because there has been a delay in making it, but delay is a factor to take into account in deciding whether granting the amendment would cause injustice or hardship to the other party. The case of Chandok v Tirkey [2015] ICR 527 (EAT) at para 15 established that an ET1 is not merely a document that starts proceedings but constitutes the claim itself, and amendments require judicial permission.[28]The Henderson v Henderson (1843) 3 Hare 100 principle at pp 115-116 prevents parties from bringing claims that should have been brought in earlier proceedings, constituting an abuse of process. MATERIALS AND SUBMISSIONS[29]The primary evidence before the Tribunal consisted of documentary evidence in the hearing bundle, including the original case management orders, correspondence between the parties, and various versions of pleadings and lists of issues submitted by the Claimant.[30]Of particular significance was an email sent by the Claimant's solicitor to the Tribunal at 9:50am on 6 August 2025, copied to the Respondents' solicitors. This email was headed "URGENT" and requested that "the attached amended ET1 grounds of the claimant's first claim" be placed on file "before an employment judge". Crucially, the email stated: "The claimant was granted permission to amend her first claim by the order of Judge Aspinall dated 25th of June 2025 and no deadline was stipulated."[31]I examined the case management orders made on 25 June 2025 in detail. Paragraph 14 of those orders provided: "The claimant has permission to apply in writing to amend the first claim to include matters currently in the second claim that should be in the first claim. Any such application must justify the amendment on time limit basis and under the Selkent principles. The respondent will have 14 days to respond to any such application. Any application can be considered at the reconvened preliminary hearing on 8 August 2025."[32]The comparison between what the order said and what the Claimant's solicitor represented it as saying revealed significant discrepancies. The order gave permission to apply to amend, not permission to amend. The order contained implicit deadlines through the requirement for the respondent to have 14 days to respond before the matter was considered on 8 August 2025.[33]The revised list of issues submitted showed extensive cross-referencing to paragraph numbers in other documents rather than setting out the legal and factual basis for each head of claim. For example, paragraph 39 relating to harassment on grounds of race contained references to 79 individual paragraphs plus 39 paragraph ranges, totalling 118 separate cross-references to other parts of the bundle.[34]The documents submitted on 6 August 2025 showed that the first claim had been expanded from 9 pages to 38 pages, incorporating material that had been removed from the second claim without proper application or judicial permission. Many of the allegations incorporated dated back to 2021, raising significant time limit issues that had not been addressed.[35]Submissions were made by Mr Alukpe regarding his understanding of the orders and his approach to compliance. He stated that he had considerable experience and had never been asked by another judge to provide factual details in a list of issues beyond paragraph references. However, he acknowledged that my order had been clear and should have been complied with regardless of his previous experience. FINDINGS OF FACT AND APPLICATION OF LAW The Unless Order of 25 June 2025[36]I find as a matter of fact that the Unless Order made on 25 June 2025 was clear, express and unambiguous in its requirements. The order carried an automatic strike-out if not complied with by 4pm on 2 July 2025. Among other requirements, paragraph 9(c) specifically required the Claimant to "correct and amend the draft list of issues providing proper legal and factual basis for each head of claim" by that deadline. Separate Permission to Apply to Amend[37]The case management orders of 25 June 2025 also contained, at paragraph 14 (which was separate from the Unless Order), permission for the Claimant to apply in writing to amend the first claim. Crucially, this was permission to apply to amend, not permission to amend. The paragraph required any such application to justify the amendment on time limit basis and under the Selkent principles, allowed the respondent 14 days to respond to any such application, and provided that any application could be considered at the reconvened preliminary hearing on 8 August 2025. The structure of this paragraph made the time constraints and procedural steps clear. Failure to Comply with the List of Issues Requirement[38]I find that the Claimant has failed to comply with paragraph 9(c) of the Unless Order to any material extent. What the Claimant provided by way of a "revised list of issues" was not a document that set out the legal and factual basis for each head of claim. Instead, it was an extended set of cross-references to paragraph numbers scattered across other documents. Paradigmatic Example of Non-Compliance[39]One representative example demonstrates the scale of this failure. Paragraph 39 of the revised list of issues, which purported to address harassment related to race, contained 79 individual paragraph references and 39 paragraph ranges—totalling 118 separate crossreferences to other parts of the bundle instead of providing the required factual and legal basis for the harassment claims. This is documented at paragraph 33 above and exemplified in the hearing bundle. I heard nothing to persuade me that such an approach satisfied the express terms of my order. The Burden Created by Cross-Referencing[40]This cross-referencing approach places an unreasonable burden on both the Tribunal and the Respondents to locate, read and understand multiple paragraphs across different documents to attempt to discern what allegations are being made and on what legal and factual basis. The approach obscures rather than clarifies the case and is the antithesis of what was ordered. It renders impossible any determination of which allegations the Claimant has permission to pursue and which represent unauthorised additions to her pleaded case. The Unauthorised Amendment of 6 August 2025[41]On 6 August 2025, the Claimant's solicitor sent to the Tribunal a document styled "amended ET1 grounds of the claimant's first claim" asserting that "the claimant was granted permission to amend her first claim by the order of Judge Aspinall dated 25th of June 2025 and no deadline was stipulated." I find this statement was factually incorrect on both elements. Paragraph 14 of my case management orders granted permission to apply to amend, not permission to amend, and contained clear time constraints through the requirement for 14 days' response time before consideration on 8 August 2025. This constitutes a breach of professional standards that undermines the integrity of the tribunal process, as emphasized in Mohammed v Guy's and St Thomas' NHS Foundation Trust. The 6 August document sought to expand the first claim from 9 pages to 37-38 pages, incorporating extensive pre-12 April 2024 allegations dating back to 2018-2022 without addressing time limits or Selkent principles, as established in Chandok v Tirkey that an ET1 constitutes the claim itself and cannot be amended without judicial permission.[42]I find that no proper application to amend the first claim was made despite the express requirement in paragraph 14 of the case management orders. What was submitted was purported amended particulars without addressing time limits, Selkent principles, or any of the legal requirements for amendment applications.[43]The 6 August document sought to expand the first claim substantially. The material before me shows the first claim was expanded from a short pleading to a lengthy 37-38 page narrative, while the second claim runs to 38 pages, as evidenced by the documents submitted on 6 August 2025 detailed at paragraphs 30-34 above. The unauthorised amendments incorporated extensive pre-12 April 2024 allegations, many going back to 2018-2022, for example those pleaded at pages 2-12 and 34-36 of the "amended" first claim. These raise obvious time-limit issues which were not addressed as Selkent requires. As established in Chandok v Tirkey, an ET1 constitutes the claim itself and cannot be amended without judicial permission. Circular Problem in Compliance Attempt[44]I find that the approach taken represents an abuse of process, attempting to circumvent the proper procedures for amendment by incorporating unauthorised changes and then building a "revised" list of issues based on those unauthorised amendments. This approach constitutes an abuse of process contrary to the Henderson v Henderson principle. The fundamental flaw is that many of the paragraph references in the purported 'revised' list of issues refer to allegations contained in the unauthorised amendments to the first claim submitted on 6 August 2025. This creates a circular problem: the list of issues relies upon amendments for which no permission was sought or granted, while those amendments were themselves incorporated without compliance with the express requirements of paragraph 14 of my case management orders. The Claimant cannot cure non-compliance with one part of my orders by relying upon non-compliance with another part. Rejection of Representative's Submissions[45]I reject entirely Mr Alukpe's submission that his approach to the list of issues reflects normal or acceptable practice. Having considerable judicial experience myself, it is emphatically not my experience that Employment Judges would permit the approach taken of simply listing vast numbers of paragraph references from other documents and leaving it to the Respondents and the Tribunal to locate them, read them, understand them and discern for themselves the factual and legal basis upon which they are relied. Such an approach is fundamentally misconceived and represents an abdication of the basic responsibility of a party to clearly set out their case. Consequence for Case Management[46]The Respondent's strike-out application accurately captured the consequence of the Claimant's approach: the case remained impossible to manage, the Respondent could not fairly understand the case to meet, and the Tribunal could not identify a workable list of issues. A list of issues must clearly identify what allegations are made, what facts are relied upon, and what legal basis is advanced for each head of claim. Mr Alukpe's approach would render case management impossible and place an unreasonable and inappropriate burden on all other participants in the proceedings. Application of Unless Order[47]The Unless Order was not complied with in any material sense. The Claimant did not deliver a list of issues that set out the legal and factual basis for each head of claim; rather, she provided a cross-referencing matrix which obscures rather than clarifies. The example at paragraph 39 (118 cross-references) is paradigmatic of that failure.[48]The Claimant also failed to follow the only lawful route to enlarge the first claim, namely a written application to amend addressing Selkent and time limits. This failure to follow proper amendment procedures violates the Selkent principles set out at paragraph 27 above. The "amended ET1" sent on 6 August 2025 cannot retrospectively convert non-compliance into compliance; it compounded it.[49]In those circumstances, and there being no timely or substantive application for relief from sanctions, the automatic consequence of the Unless Order is that the claims are dismissed. The principles established in Blockbuster Entertainment Ltd v James apply: the sanction takes effect automatically without residual discretion unless an application for relief is made within the stipulated period. Relief from Sanctions[50]Despite no application being made, I nevertheless considered relief in case I retain a residual discretion, applying the principles established in the authorities.[51]While the Denton approach in the civil courts is not binding on this Tribunal, it provides a useful framework for assessing relief from sanctions that I have applied alongside the established Employment Tribunal authorities. This structured approach confirms that relief from sanctions would be inappropriate in all the circumstances.[52]First, the seriousness and significance of the breach: The breach was plainly serious and significant. It went to the heart of case management, rendering the proceedings unmanageable. The failure persisted for months despite clear warnings and affected the fundamental requirement to provide a pleaded case and then a workable list of issues that would enable fair determination of the claims.[53]Second, the reason for the default: No good reason has been advanced for the breach. The order was clear and unambiguous. The solicitor's letter of 6 August 2025 demonstrated not misunderstanding but misrepresentation of what had been ordered, claiming permission to amend had been granted when only permission to apply had been given.[54]Third, all the circumstances: The history of non-compliance dating back to Employment Judge Corrigan's orders in September 2024 demonstrates persistent disregard spanning over 15 months. The default has caused real prejudice to the Respondents and undermined the administration of justice. The overriding objective would not be served by relief, which would necessitate converting the listed final hearing into further preliminary process and relisting into 2027/2028. This would be neither just nor proportionate, applying the principles in Blockbuster and Liddle. Alternative Strike Out[55]Even if I were wrong about the operation of the Unless Order, I would exercise my discretion to strike out the claims under Rule 38(1)(c). Following Abegaze v Shrewsbury College, striking out is justified where there is persistent and serious default such that a fair trial is no longer possible or the defaulting party has demonstrated a disregard for the Tribunal's process. The history of non-compliance dating back to Employment Judge Corrigan's orders, combined with the current failures, demonstrates persistent and serious default spanning over 15 months.[56]As stated in Liddle, where there is prolonged and unexplained delay that causes prejudice to the other party or undermines the administration of justice, striking out can be justified. The case management difficulties are entirely of the Claimant's making through her legal representative and demonstrate a disregard for the Tribunal's process that has made a fair trial no longer possible.[57]I have considered whether a lesser sanction would suffice (per Bolch), but further indulgence would require converting the November 2025 final hearing to a preliminary hearing, finding further hearing time for complex amendment applications, and likely relisting for final hearing in 2027 or 2028. This would be prejudicial to the Respondents and not in the interests of justice, particularly given the age of some allegations. Other considerations and findings[58]I have carefully considered whether the defaults are those of the representative rather than the Claimant. Ultimately, the proceedings are the Claimant's. The Tribunal cannot re-plead the case for her, nor can the Respondent be required to divine a case from sprawling cross-references and unauthorised amendments. The orders were clear; the route to amendment was clear; the consequences of non-compliance were clear.[59]Given the serious and significant breach of the Unless Order, the absence of any good reason for non-compliance, and the lack of any application for relief from sanctions, the automatic strike-out is inevitable under the Blockbuster principles. The persistent procedural defaults over 15 months, combined with the demonstrated disregard for tribunal processes, render any alternative outcome inconsistent with the authorities and the overriding objective.[60]The enforcement of these procedural standards serves not only the interests of the immediate parties but also the wider public interest in maintaining efficient tribunal administration. Employment Tribunals face significant resource constraints and substantial caseloads. Permitting persistent non-compliance with clear case management orders would undermine the system's ability to provide anything close to timely justice to all users and erode public confidence in the tribunal's capacity for fair and efficient dispute resolution.
CONCLUSION
[61]For the reasons set out above, the Claimant failed to comply with the Unless Order of 25 June 2025. That breach was serious and significant, no good reason was advanced for it, and no application for relief from sanctions was made. By operation of the order's clear terms and in accordance with Blockbuster, the claims are automatically struck out.[62]In the alternative, applying Rule 38(1)(c), the persistent and serious procedural defaults over a prolonged period have made a fair trial impossible. No lesser sanction would suffice (Bolch). This accords with the guidance in Abegaze and Liddle.[63]Upholding robust compliance with case management orders serves both the interests of justice between the parties and the wider public interest in the efficient administration of justice. Employment Tribunals must maintain procedural standards to ensure fair and timely resolution of disputes for all users of the system.[64]The claims in both proceedings are struck out in their entirety. APPROVED Judge M Aspinall (sitting as an[1]The original hearings took place on 25 June 2025 and 8 August 2025. I gave judgment orally on 8 August 2025 striking out both claims. The Claimant's solicitor requested written reasons at the hearing, which I provided on 10 August 2025. The full written judgment was sent to the parties on 15 August 2025. The Claimant applied for reconsideration by email dated 28 August 2025, within the 14-day time limit under Rule 69.[2]I refuse the application, for the reasons set out below, as there is no reasonable prospect of my judgment being varied or revoked. LEGAL FRAMEWORK Reconsideration Rules[3]The power to reconsider judgments is governed by Rules 68-73 of the Employment Tribunal Rules of Procedure 2024. Rule 68 provides: "A Tribunal may, either on its own initiative... or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so."[4]Rule 70(2) provides: "A Tribunal shall not reconsider a judgment unless it considers that there is a reasonable prospect of the original decision being varied or revoked."[5]Applications must therefore satisfy two cumulative tests: they must be necessary in the interests of justice (Rule 68) and have reasonable prospects of success (Rule 70(2)). Continuity of Approach Under 2024 Rules[6]The 2024 Rules have not altered the fundamental approach to reconsideration established under the 2013 Rules. Rule 68 uses identical language to the former Rule 70 of the 2013 Rules: "necessary in the interests of justice." The 2024 Rules have, if anything, tightened the test by adding the reasonable prospects requirement under Rule 70(2).[7]The established case law on finality of litigation and the impropriety of allowing "second bites at the cherry" applies with undiminished force. The authorities consistently demonstrate that the "interests of justice" test incorporates well-established principles including the critical importance of finality in litigation. Responsibility for Legal Representation[8]The fundamental principle in employment tribunal proceedings is that a party is bound by the acts and omissions of their chosen legal representative. This principle rests on agency law, the need for finality in litigation, and judicial efficiency.[9]In Andreou v Lord Chancellor's Department [2002] IRLR 728, the Court of Appeal held that parties must ordinarily bear responsibility for the conduct of their legal representatives. Errors or defaults by a solicitor cannot usually excuse non-compliance with tribunal rules or orders.[10]This principle was reaffirmed in Riley v Crown Prosecution Service [2013] EWCA Civ 951, where the Court emphasised that representational failings do not, without more, amount to an error of law requiring appellate interference.[11]In Phipps v Priory Education Services Ltd [2023] EWCA Civ 652, the Court of Appeal restated the general rule but recognised a narrow exception in wholly exceptional circumstances where:(i) the claimant bears no personal fault for the failures;(ii) strict application would cause manifest injustice; and(iii) the claimant has had no proper opportunity to present the substance of their case. The threshold is deliberately high and such cases will be rare. ESTABLISHED AUTHORITIES ON RECONSIDERATION[12]In Outasight VB Ltd v Brown [2015] ICR 303 (EAT), the EAT confirmed at [49] that the “interests of justice” test incorporates established principles including the critical importance of finality in litigation. As HHJ Eady QC (as she then was) stated at [49]: "the approach laid down in Ladd v Marshall will, in most cases, encapsulate that which is meant by the 'interests of justice'”[13]The Ladd v Marshall principles require that fresh evidence:(i) could not have been obtained with reasonable diligence for the original hearing;(ii) would probably have an important influence on the result; and(iii) is apparently credible. These principles continue to inform the interests of justice test under the 2024 Rules.[14]In Outasight at [47], HHJ Eady addressed whether the 2013 Rules changed the position from earlier authorities, concluding that using the same “interests of justice” formulation did not alter the approach. The same reasoning applies with equal force to the 2024 Rules.[15]As Phillips J observed in Flint v Eastern Electricity Board [1975] ICR 395 at 404-405: "it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that it should only be in unusual cases that... [a party] is able to have a second bite at the cherry."[16]In Ebury Partners UK Ltd v Acton Davis [2023] EAT 40, HHJ Shanks emphasised at [24] that finality is a central aspect of the interests of justice, that a “second bite of the cherry” is unusual, and that the reconsideration jurisdiction should be exercised with caution.[17]Ebury Partners further established at [24] that while reconsideration may be appropriate after a procedural mishap denying a fair opportunity to present a case, the jurisdiction should not be used to correct a supposed error by the ET where parties have already had a fair opportunity to advance their arguments. BACKGROUND TO THE CASE[18]Mrs Mojisola Paul was employed by United Learning Trust, a multi-academy trust, as a teacher from approximately 1 September 2017 until her employment was terminated on 31 August 2024. During her employment, she raised various concerns about her treatment which she alleged amounted to discrimination and harassment on grounds of race and disability.[19]The Claimant presented her first claim on 12 April 2024 following ACAS early conciliation. Subsequently, she presented a second claim in September 2024 following her dismissal. The second claim initially contained extensive allegations dating back to 2018 and earlier, creating substantial overlap with matters that should have been included in the first claim.[20]From an early stage, the case was subject to extensive case management difficulties. Employment Judge Corrigan made case management orders in September 2024 requiring the Claimant to clarify and properly particularise her claims. Specifically, EJ Corrigan directed that the second claim should be limited to matters arising after the first claim was submitted on 12 April 2024. These orders were not satisfactorily complied with over a period of approximately eight months.[21]The persistent failure to comply with basic case management requirements, despite professional representation throughout, created a situation where fair determination of the disputes had become impossible without decisive case management intervention. THE UNLESS ORDER AND STRIKE-OUT JUDGMENT[22]At a preliminary hearing on 25 June 2025, I identified serious ongoing problems with case management compliance that had persisted despite EJ Corrigan's previous orders from September 2024. I made specific case management orders including an Unless Order with a deadline of 4pm on 2 July 2025.[23]The Unless Order required the Claimant to:(a) redo the particulars of the second claim limiting them to matters arising after 12 April 2024;(b) remove all allegations and matters dating before 12 April 2024; and(c) correct and amend the draft list of issues providing proper legal and factual basis for each head of claim. The automatic sanction was clearly stated: if not complied with by the deadline, both claims would be struck out in their entirety without further order.[24]The deadline passed without any compliance whatsoever. Instead of complying with the Unless Order, on 6 August 2025 the Claimant's solicitor sent an email falsely claiming that I had given "permission to amend" the first claim when I had only given "permission to apply in writing to amend." This misrepresentation formed the basis for unauthorised amendments expanding the first claim from 9 pages to 38 pages without proper application or judicial permission.[25]At the resumed hearing on 8 August 2025, I conducted a comprehensive analysis of compliance with the Unless Order and considered the proportionality of strike-out under all applicable legal principles. I examined whether lesser sanctions would suffice, the impact on both parties, the history of persistent non-compliance spanning eight months, the effect on tribunal resources, and the prejudice to the Respondents in circumstances where fair determination had become impossible. Having considered these factors fully, including the draconian nature of strike-out emphasised in authorities such as Abegaze v Shrewsbury College and Bolch v Chipman, I found that the Unless Order had not been complied with to any material extent. I struck out both claims pursuant to the Unless Order under Rule 39 and, alternatively, under Rule 38 for persistent default that made a fair trial no longer possible. On reviewing that consideration when determining this reconsideration application, I am satisfied that I applied the proportionality assessment fully and reasonably in accordance with established legal principles. THE RECONSIDERATION APPLICATION[26]Mrs Paul applied for reconsideration by email dated 28 August 2025, within the 14-day time limit under Rule 69. The application raised four grounds:(i) that the original ET1 contained sufficient particulars to continue without amendment;(ii) that the document filed on 6 August 2025 constituted an application to amend;(iii) that I should have considered a deposit order as an alternative sanction; and(iv) that I should have considered partial strike-out rather than complete strike-out. Fatal Procedural Breach - Non-Service on Respondents[27]During my consideration of this application, I identified that the Claimant's solicitors failed to send a copy of the reconsideration application to the Respondents, in breach of Rule 90(1) of The Employment Tribunal Procedure Rules 2024.[28]Rule 90(1) provides: "Where a party sends a communication to the Tribunal it must send a copy to all other parties, and state that it has done so (by use of 'cc' or otherwise)." This is a mandatory requirement using imperative language ("must") without discretion.[29]This breach fundamentally undermines natural justice and procedural fairness. The Respondents possess a basic right to notice of applications that could disturb the finality of judgments in their favour. Having endured 18 months of procedural difficulties before obtaining final resolution, they are entitled to oppose any attempt to reopen decided matters.[30]Non-compliance with Rule 90(1) renders the application fundamentally defective and independently fatal. This constitutes an independent ground for refusal irrespective of substantive merits. Analysis of the Application's Deficiencies[31]The application demonstrates multiple fundamental deficiencies that underscore its complete lack of merit:[32]Absence of Legal Authorities: The application cites no legal authorities whatsoever. This is particularly striking for a document prepared by professional representatives challenging a strike-out judgment. Properly prepared reconsideration applications would typically cite relevant authorities on: a) The interests of justice test and its application b) The operation of unless orders under Rule 39 c) The principles governing deposit orders under Rule 40 d) Authorities on partial strike-out and case management powers e) The Outasight/Ebury Partners line of authority on reconsideration[33]Bare Assertions Without Evidence: The four grounds are essentially unsupported assertions lacking legal foundation: a) "Original ET1 contained sufficient particulars" - no legal analysis of what constitutes sufficient particulars or engagement with the 8-month compliance history b) "6 August document was an application to amend" - contradicts the express terms requiring formal applications and ignores the false statement about judicial permission c) "Deposit orders should have been considered" – no engagement with Rule 39's automatic operation confirmed in Mohammed v Guy's & St Thomas' NHS Foundation Trust [2023] EAT 16, which establishes that once an unless order is breached, alternative sanctions are not available at that stage d) "Partial strike-out should have been considered" - no authorities on when this is appropriate or acknowledgment that unless orders operate as complete units[34]Failure to Engage with Core Requirements: The application makes no attempt to demonstrate that reconsideration is "necessary in the interests of justice" - the fundamental requirement under Rule 68. There is no analysis of finality principles, no consideration of prejudice to other parties, and no engagement with the established authorities. FULL AND FAIR OPPORTUNITY TO BE HEARD[35]The documented proceedings demonstrate comprehensively that both parties had extensive opportunities to make submissions and that no procedural mishap denied the Claimant a fair opportunity to present her case. 25 June 2025 Hearing[36]The preliminary hearing commenced and addressed the central issue of the Claimant's failure to comply with Employment Judge Corrigan's clear direction from September 2024 that the second claim should be limited to matters arising after the first claim was submitted.[37]Mr Alukpe made detailed submissions on behalf of the Claimant regarding the case management difficulties and the approach taken to compliance with previous orders. He was given extensive opportunities to explain the Claimant's position on the pleading deficiencies and to justify why Employment Judge Corrigan's clear directions had not been satisfactorily implemented over the preceding eight months.[38]During the hearing, Miss Halsall took the Tribunal through the draft list of issues, highlighting the areas requiring clarification including direct discrimination claims lacking specific dates, actors, and comparators; indirect discrimination claims with inadequately defined PCPs; disability discrimination claims with disconnected elements of unfavourable treatment; and harassment and victimisation claims lacking specificity.[39]Mr Alukpe was afforded ample opportunity to respond to these criticisms and to make submissions about how the case could be brought into a manageable state. The hearing included wide-ranging discussion of the fundamental case management problems that had persisted despite professional representation throughout.[40]The hearing also considered various claims which were withdrawn by the Claimant, leading to a separate judgment under Rule 51. Extensive case management orders were made following full submissions from both representatives, including a clear Unless Order with specific requirements and automatic consequences. 8 August 2025 Hearing[41]The resumed preliminary hearing was conducted by video conference using the Cloud Video Platform. Initial technical difficulties with audio feedback were resolved by having the Claimant and her solicitor share a single connection.[42]Mr Alukpe made extensive and detailed submissions regarding his understanding of the Unless Order requirements and the approach taken to compliance. He was given comprehensive opportunities to explain and justify the methodology used in the revised list of issues, including the extensive cross-referencing approach that had been adopted.[43]During these submissions, Mr Alukpe stated that he had considerable experience in employment law and had conducted "more than a dozen" preliminary hearings. He submitted that he had never been asked by another judge to provide factual details in a list of issues beyond paragraph references. However, he acknowledged during his submissions that my Unless Order had been clear and should have been complied with regardless of his previous experience with other judges.[44]Mr Alukpe was given extensive opportunity to address the critical email of 6 August 2025 and to make submissions about the status and validity of the documents submitted, including the purported "amended ET1 grounds." He made detailed submissions attempting to characterise these documents as a proper application to amend rather than unauthorised amendments.[45]The hearing included examination of specific examples from the documentation to illustrate the compliance issues, with Mr Alukpe afforded full opportunity to respond to each point raised and to make counter-submissions. The discussion was wide-ranging and detailed, covering the technical requirements of the Unless Order, the legal framework for amendment applications, and the practical consequences of the approach taken.[46]Mr Alukpe made comprehensive submissions against strike-out under both Rule 39 and Rule 38, arguing for alternative approaches and seeking to persuade the Tribunal that compliance had been achieved or that relief from sanctions would be appropriate. These submissions were detailed and covered multiple grounds, though ultimately unconvincing.[47]The hearing was adjourned for judicial consideration before judgment was delivered, following extensive submissions from both representatives. The documented proceedings show that over 18 months across multiple hearings before two different judges, Mr Alukpe as the Claimant's professional representative had comprehensive opportunities to present detailed submissions on behalf of his client, to address case management compliance issues, and to argue against adverse consequences.[48]At both hearings, Mr Alukpe made detailed, wide-ranging submissions addressing all relevant issues. He was given more than ample opportunity to present his arguments for the Claimant on both occasions, which he did extensively, though his submissions proved unconvincing in light of the clear evidence of persistent non-compliance with judicial directions over an extended period. ANALYSIS OF INDIVIDUAL GROUNDS Ground 1: "Original ET1 Could Continue Unamended"[49]This ground demonstrates a fundamental misunderstanding of the legal effect of Unless Orders under Rule 39. Unless Orders operate automatically upon breach regardless of whether the underlying requirement was strictly necessary. Rule 39 provides that where an unless order specifies automatic dismissal for non-compliance, the sanction takes effect without further order when the deadline passes. In Mohammed v Guy's & St Thomas' NHS Foundation Trust [2023] EAT 16, the EAT confirmed that an unless order is self-executing: once breached, the sanction takes effect automatically under Rule 39.[50]The Unless Order was made because of persistent non-compliance with EJ Corrigan's September 2024 directions over eight months, not because of any theoretical inadequacy in the original pleadings. If the pleadings were adequate, the persistent inability to comply with basic case management directions over eight months would require explanation. The evidence demonstrates systematic problems affecting the entire structure of both proceedings.[51]The Unless Order deadline of 2 July 2025 passed without any compliance whatsoever. The automatic strike-out therefore took effect on 3 July 2025 under Rule 39. Whether the original claims were theoretically sufficient became legally irrelevant once the Unless Order was breached.[52]Accepting this argument would render Unless Orders ineffective, as parties could retrospectively argue that compliance was unnecessary. This would contradict the "weapon of last resort" principle and undermine the case management framework established to ensure effective tribunal administration.[53]Even if the original pleadings were theoretically adequate (which the 8-month compliance history contradicts), this cannot provide reasonable prospects of varying a judgment mandated by Rule 39 following total non-compliance. Ground 2: "Amended Claim Was Application to Amend"[54]The distinction between an application to amend and an actual amendment is fundamental. The objective test requires the Tribunal to consider how a reasonable recipient would have understood the communication, looking at its title, content, and the context in which it was sent.[55]The email of 6 August 2025 stated "please find attached amended ET1 grounds of the claimant's first claim" and claimed "The claimant was granted permission to amend her first claim." This language unambiguously presented completed amendments, not an application for permission. The objective construction of the document cannot be reconciled with the application's assertion.[56]The entire submission was based on a false statement that I had "granted permission to amend" when I had only given "permission to apply in writing to amend." This misrepresentation cannot be cured by retrospective recharacterisation. Such recharacterisation would permit parties to circumvent Rule 29 by filing unauthorised amendments accompanied by false statements about judicial permission, then retrospectively claiming they were applications.[57]By 6 August 2025, both claims had been automatically struck out for over a month (since 3 July 2025). Applications to amend can only be made in respect of live proceedings. Even if this were construed as an application (which the evidence does not support), it did not address the Unless Order requirements that needed to be met by 2 July 2025.[58]No reasonable tribunal could construe a document titled "amended ET1 grounds" claiming "permission to amend" had been granted as anything other than completed amendments, particularly when accompanied by false statements about judicial permission. Ground 3: "Deposit Order Alternative"[59]Unless Orders operate automatically when deadlines pass without compliance under Rule 39. In Mohammed v Guy's & St Thomas' NHS Foundation Trust [2023] EAT 16, the EAT confirmed that an unless order is self-executing: once breached, the sanction takes effect automatically under Rule 39.[60]Deposit orders under Rule 40 are available where specific allegations or arguments have "little reasonable prospect of success." However, they operate as forward-looking case management tools in live proceedings designed to address substantive weakness in claims. The Unless Order addressed persistent procedural default spanning eight months from EJ Corrigan's September 2024 directions. A deposit order could not have addressed the fundamental inability to comply with basic case management requirements that had characterised these proceedings.[61]The Unless Order was itself an alternative to immediate strike-out. I had identified serious ongoing problems at the 25 June hearing but gave a final opportunity for compliance rather than striking out immediately under Rule 38. This opportunity was not taken, and the automatic consequences followed under Rule 39.[62]The specific Unless Order requirements were designed to make the claims manageable for determination. Without compliance, no meaningful case management was possible regardless of substantive merit. The principle in Outasight establishes that the interests of justice require consideration of "the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation."[63]The Mohammed principle that unless orders are self-executing makes alternative sanctions legally impossible once breach occurs. This ground seeks relief that is legally unavailable. Ground 4: "Partial Strike-Out Option"[64]Unless Orders must be construed according to their express terms under Rule 39. The automatic operation of Rule 39 means that compliance is assessed objectively against the specific requirements set out in the order.[65]The Unless Order required comprehensive compliance with three specific requirements by 2 July 2025. It was not divisible and contained no provision for partial compliance. The Claimant either complied entirely or failed entirely. The breach was total (no compliance by the deadline) and the consequences were therefore total under Rule 39.[66]The assertion that "some aspects were sufficiently clear" is not supported by the procedural history. The fundamental problems identified were systemic: the second claim contained pre-April 2024 allegations in breach of EJ Corrigan's direction, and the list of issues lacked proper legal and factual basis across all claims.[67]The Unless Order requirements were interconnected. The second claim needed to be limited to post-April 2024 matters, which would affect the list of issues, which in turn would clarify what remained for determination. These were not separable defects but systemic problems requiring comprehensive resolution.[68]Even without the Unless Order, I found independent grounds for complete strike-out under Rule 38 based on persistent default making a fair trial impossible. The eight-month history of non-compliance demonstrated systematic disregard for tribunal process that affected the entirety of both proceedings.[69]Where an unless order requires comprehensive compliance by a deadline and no compliance occurs, partial alternatives are not legally available. The fundamental problems were systemic, not isolated. COMPREHENSIVE ANALYSIS The "Second Bite at Cherry" Problem[70]This application exemplifies the “second bite at the cherry” condemned in the authorities. In Outasight at [54], the EAT refused reconsideration where a party sought to re-argue matters after an adverse judgment, observing that dissatisfaction with how a case was presented does not justify reopening final decisions.[71]Here, the Claimant seeks to re-argue points that were available at the original hearings but were either not advanced or advanced unsuccessfully. The four grounds raised - sufficiency of pleadings, nature of amendment applications, deposit orders, and partial strike-out - were all matters within the knowledge and competence of professional representatives at the time.[72]The application contains no suggestion that these arguments were unavailable at the original hearings, no claim of procedural ambush, and no assertion that circumstances prevented their advancement. This is precisely the situation where, as Ebury Partners confirms at paragraph [26], professional representatives must put forward relevant arguments and cannot later claim that well-established legal principles were beyond their contemplation. Professional Representation and Agency[73]The significance of professional representation throughout cannot be understated. The Claimant was represented by Mr Alukpe, who claimed substantial employment law experience and familiarity with tribunal procedures.[74]The Claimant's solicitor acted as her agent, and she is bound by his acts and omissions in conducting these proceedings. Any failings in prosecuting her case are matters for which she bears responsibility under the principle established in Andreou v Lord Chancellor's Department. The adequacy of her representation is a matter between the Claimant and her solicitor, not for this Tribunal or the Respondents.[75]Professional representation carries heightened obligations. The systematic nature of the procedural failures over 18 months, combined with professional representation throughout, demonstrates that this is not a case of innocent error or understandable oversight, but rather a pattern of disregard for tribunal procedures that professional representation should have prevented.[76]The exceptional circumstances recognised in Phipps v Priory Education Services Ltd do not arise here. The Claimant cannot claim she bears no personal fault when she chose her professional representative and was bound by his conduct throughout. Crucially, she has personally attended hearings where she witnessed judicial criticism of how the case was being managed and progressed, heard extensive judicial guidance on compliance requirements, and observed judicial displeasure at the persistent failures. Despite this direct exposure to the tribunal's concerns about her professional representation, she apparently did little or nothing to press for better case management or to ensure compliance with clear judicial directions. She allowed those professionally representing her to continue in the same fashion that had repeatedly attracted judicial criticism. She has had full opportunity to present her case through her chosen agent over 18 months of proceedings across multiple hearings with extensive judicial guidance and opportunities for compliance. Interests of Justice Analysis[77]The interests of justice require consideration of all relevant factors, not merely the immediate interests of the unsuccessful applicant. The principles established in Outasight emphasise that finality in litigation is a central aspect of the interests of justice.[78]The procedural history demonstrates that the Claimant had multiple opportunities over eight months to comply with clear case management directions through her professional representative. There has been no procedural mishap denying the Claimant a fair opportunity to present her case. The extensive documented proceedings confirm that comprehensive opportunities were provided for submissions and clarification.[79]The false statement made to the Tribunal on 6 August 2025 represents a serious breach of professional standards that goes beyond mere procedural error. The application does not acknowledge this misconduct or explain how it could be consistent with the interests of justice to overlook such behaviour.[80]The failure to serve the reconsideration application on the Respondents demonstrates continued systematic disregard for tribunal procedures. This breach further demonstrates the pattern of procedural default that has characterised these proceedings and denies the Respondents their fundamental right to respond to applications affecting their interests. Public Interest Considerations[81]The public interest in finality of litigation is particularly acute in this case. The proceedings have consumed substantial tribunal resources over 18 months across multiple hearings before two different judges. Case management orders have been repeatedly ignored despite professional representation throughout.[82]Granting reconsideration would signal that unless orders can be circumvented through retrospective challenge, undermining their effectiveness as case management tools. It would encourage parties to ignore compliance deadlines in the expectation that reconsideration might be available if consequences prove unpalatable.[83]The Respondents have endured over 18 months of procedural default and have a legitimate interest in finality. They have been denied their fundamental right to respond to this application through the failure to serve copies upon them. The broader public interest requires confidence in tribunal procedures and finality of decisions.[84]The efficient administration of justice requires that decided cases remain decided unless exceptional circumstances genuinely warrant reconsideration. The systematic disregard for tribunal procedures demonstrated in these proceedings, culminating in false statements to the Tribunal and failure to serve mandatory documents on opposing parties, represents the antithesis of exceptional circumstances warranting further indulgence. Application of Rule 70(2) - No Reasonable Prospects[85]Each ground advanced contradicts binding legal authority and does not address the undisputed procedural history. The Unless Order operated automatically under Rule 39 when the deadline passed without compliance. Alternative sanctions were not available once the breach occurred.[86]No new evidence has been presented that was not available at the time of the original hearing. No change in legal circumstances has occurred. The application simply disagrees with the consequences of clear procedural failures and seeks to avoid those consequences through retrospective challenge.[87]The judgment was both legally mandated under Rule 39 and factually inevitable given the history of persistent default. The application demonstrates no arguable basis for disturbing this conclusion and amounts to an impermissible attempt to relitigate matters that were already fully and fairly determined.
CONCLUSION
[88]I have carefully considered the application against the statutory criteria in Rules 68 and 70(2). The application fails both tests comprehensively and clearly fails to meet the required standard.[89]Rule 68 - Interests of Justice: The interests of justice do not require reconsideration. The judgment was the inevitable consequence of persistent procedural default over eight months, culminating in total failure to comply with a clear Unless Order. The Claimant had multiple opportunities to comply through her professional representative and suffered no procedural mishap denying a fair opportunity to present her case.[90]Rule 70(2) - Reasonable Prospects: There are no reasonable prospects of the judgment being varied or revoked. Each ground contradicts binding legal authority and ignores the undisputed factual history. The Unless Order operated automatically under Rule 39, and no discretion remained once breach occurred.[91]Agency and Responsibility: The proper administration of justice, and the overriding objective under Rule 3, require that parties accept responsibility for their chosen representatives' conduct. The Claimant is bound by her solicitor's acts and omissions. Any failings in prosecution of her case are not the fault or responsibility of this Tribunal or the Respondents and are not to be visited upon them.[92]Procedural Breaches: The serious breach of professional standards in the false statement of 6 August 2025, combined with the failure to serve this application on the Respondents, demonstrates continued systematic disregard for tribunal procedures that further undermines any claim to exceptional treatment.[93]Finality: This represents an impermissible attempt to obtain a "second bite at the cherry" by relitigating matters that were fairly determined after full consideration. The authorities consistently reject such attempts to maintain finality in litigation and preserve the integrity of the tribunal system.[94]For these reasons, applying the statutory criteria rigorously and having regard to all relevant considerations including the overriding objective, I refuse the application for reconsideration. The judgment of 8 August 2025 stands as both legally sound and factually inevitable. APPROVED Judge M Aspinall (as an