Mustafa v Guy's And St Thomas NHS Foundation Trust (Practice and Procedure : Striking-out or dismissal) [2011] UKEAT 0516_11_2212

EAT
Mustafa v Guy's And St Thomas NHS Foundation Trust (Practice and Procedure : Striking-out or dismissal)
[2011] UKEAT 0516_11_2212 · 2011-12-22
[1]This is an appeal by Ms Mustafa against a decision of an Employment Judge dated 18 February 2011 in which the Employment Judge ruled that the Appellant had failed to comply with an unless order for the provision of certain further and better particulars of her claim which expired on 6 December 2010. On that basis her claims made in the Employment Tribunal were automatically struck out. He considered, however, relief against striking out and whilst he granted her relief to pursue her claim of unfair dismissal he declined to grant relief in respect of her claim under the Disability Discrimination Act (DDA) which remained struck out. In addition he awarded £1500 costs to the Respondent payable by the Claimant. The background facts[2]The Claimant commenced employment with the Respondent as a pharmacist on 19 June 2005. In April 2006 she suffered from symptoms of chronic fatigue and was absent from work until September 2008 when she returned on a phased basis. She had the benefit of advice from an occupational health physician, Dr Siva, who consulted with the Claimant’s general practitioner. Dr Siva produced reports to the Respondent on the 15 February 2007 and 3 October 2008 in which he advised that her condition was likely to give rise to protection under the DDA.[3]On the 9 October 2009 the Respondent convened a hearing with the Claimant in accordance with its sickness absence policy to discuss her capability to perform her role in view of her continuing ill health. Following that and by letter dated 16 October 2009 the Respondent dismissed her on grounds of capability, her dismissal originally set to take effect on 10 February 2010.[4]The Claimant appealed internally against that decision and the combination of that together with a pursuance of a grievance which the Claimant had raised with the Respondent meant that by the time ET proceedings had commenced that process had not finally been completed. On 11 January 2010 the Claimant commenced proceedings in the ET. She claimed for unfair dismissal. She set out the terms of her complaint briefly as follows:
“ … this condition (chronic fatigue syndrome) led me to be off sick. I returned in September 2008 to a different role on a phased return basis … There was no reasonable adjustment to the location even though I could have been offered the same work on another site. No comprehensive return to work plan was put in place. No risk assessment undertaken and no adjustment to the role with respect to site or requirement to do on call. This led to a further breakdown in May 2009 and July 2009. The request to work at the other site was refused. … When GSTT decided to dismiss me on grounds of capability (October 9 th 2009) I was on sick leave and had not exhausted the sick pay. Due to my health I haven’t been able to supply all the details. I lodge this on a protected basis and will supply further particulars later. Based on the above facts I wish to claim that my dismissal was unfair.”
[5]She also claimed discrimination on the grounds of sex, race and religion and belief. In respect of those claims her claim was put very briefly.[6]She also submitted a claim under the DDA, again she made her claim in succinct terms as follows:
“I suffer from chronic fatigue syndrome. No adjustment was made to the site I work from nor the return to work plan or the role in respect of the on call.”
[7]The Respondent submitted an ET3 dated 9 February 2010. Within the main part of the form at paragraph 6.1 they said this:
“The respondent requires further and better particulars from the claimant with regard to her claims”
[8]However, the ET1 appended separate grounds of resistance in which the Respondent set out fully its defence in respect of various of the claims that included the claim for unfair dismissal. In respect of the claims for sex discrimination, race discrimination and religious discrimination the claim was resisted briefly but in terms explicitly that further and better particulars are requested before they could further plead their case.[9]In respect of the disability discrimination there was no such proviso. The Respondent pleaded fully to that claim. They did not admit that the Claimant was disabled within the meaning of the DDA. They accepted that she had taken prolonged periods of sick leave but had offer her both a phased return to work and reduced working hours to assist her return. It was denied that no risk assessment had been conducted because it was a result of the risk assessment that the adjustments were offered. They also pleaded that the Claimant was seen on a number of occasions by occupational health and no suggestions were made by occupational health as to adjustments to her working site, nor were they able to suggest any adjustments that would have effectively enabled the Claimant to return to her job on a full time basis. The Respondent claims to have made all the adjustments that were reasonable in the circumstances thus the claim of failure to make reasonable adjustments was denied.[10]There was a telephone management case discussion on 24 May 2010 at which orders and directions set out in Schedule B were made. Those orders included the following: B3. “In order to assist the claimant’s preparation it had been indicated that the further and better particulars required are likely to include (but are not restricted to)(1) confirmation of the nature of the claimant’s disability,(2) Confirmation of the basis upon which the claim is brought under the Disability Discrimination Act including whether it was indented to include a claim if direct discrimination …”[11]On 24 May 2010 the Respondent sent to the Claimant a request for further and better particulars. That request included requests in respect of disability, sex, race and religion or belief discrimination.[12]One of the orders made by the Tribunal on 24 May was that the Claimant provide the information requested in that request by the 28 June. In fact she failed to do so and after repeated failures to respond; on the 9 November 2010 the Tribunal ordered that unless she comply with the 24 May order by 6 December 2010 the claim shall be struck out on that date without further consideration.[13]On 6 December 2010 the Claimant emailed her response to the request for further and better particulars under cover of a letter of that same date in which she said amongst other things:
“Given my ill health I have had great difficulty complying with this Tribunal order and have required assistance. I therefore request that the Tribunal grant permission to add to the response once my legal representatives had been appointed.”
[14]In respect of the further particulars requested in respect of discrimination other than disability, in response to the request in relation to sex discrimination the Claimant provided no specific information in respect of three of the four requests, but referred the Respondents to its sickness records for details. In respect of her claim for race discrimination of requests Numbered 4, 5 and 6 which included some sixteen specific requests she provided specific information in respect of all save one. In respect of religion or belief discrimination in response to requests for six pieces of information she supplied information in respect of five of them and referred the Respondents to its own information in respect of the sixth.[15]Of the disability discrimination claim she was asked two questions giving rise to requests for a number of pieces of information. It is common ground that in respect of question one concerning her alleged disability she gave sufficient answers in respect of three out of the five requests. In particular, in respect of the request asking which condition she relied on to say that she was a disabled person, she said as follows:
“Post viral fatigue syndrome and complications. GP and Occupational Health doctors have provided the respondent with written information regarding my condition and answered the respondent’s questions relating to my disability please refer to these.”
In respect of the fourth request for information under this heading “ How each of these conditions effect your day to day activities ” her reply was:
“Substantial adverse effects on normal daily activities”
In respect of the fifth request for information the Respondent accepts that the response given is not such as obviously to be a non compliance with the request.[16]In respect of the second request for further information in respect of the contention that “ no adjustment was made to the site I work from nor the return to work plan or the role in respect of on call ” it is accepted by the Respondent that of the six requests for information she gave a sufficient response to four of them. In request for information numbered (iii) and (iv) she did not respond adequately according to the Respondent to either of those, limiting herself in each case to the assertion “ There was no clear return to work plan ”.[17]On 8 December 2010 the Respondent wrote to the Tribunal that the Claimant’s further and better particulars were wholly inadequate and asked for a pre-hearing review to determine amongst other things whether any of the Claimant’s claims were automatically struck out for failing to comply with the unless order of the 9 November.[18]On 16 February 2011 (2 days before the Tribunal hearing) solicitors acting for the Claimant, having recently been instructed, wrote to the Tribunal withdrawing her claims on the grounds of sex, race and religion or belief discrimination, leaving her claims of disability discrimination and unfair dismissal.[19]On the 18 February, the date of the ET hearing, those solicitors furnished to the Tribunal a draft revised list of issues. Amongst the issues said to be raised were those under the DDA and those issues included the following “ Does the claimant have a physical or mental impairment; does that impairment have adverse effects which are substantial; are those substantial adverse effects long term; and, are those substantial adverse long term effects on normal day to day activities ”.[20]In respect of direct discrimination they say “ The claimant says she was subject to the following acts of discrimination,(1) Requirement to undertake on call duty upon her return to work in September 2008,(2) her dismissal effective on 1 st February 2010 .” Under the heading Reasonable Adjustments the document says as follows at paragraph 2; “ The following provision, criteria or practices were applied to the claimant following her return to work in September 2008 … ” There then appears a list of 9 specific matters. At paragraph 5 of that document the document reads “ Among the possible reasonable adjustments that the respondent could have considered or put in place are the following; … ” There is then a serious of 9 specific statements each of them addressing the corresponding PCPs identified at paragraph 2. The Employment Tribunal Decision[21]In paragraph 1 – 7 of the Decision, the Employment Judge set out briefly the chronology of events ending with the letter of the Respondents dated 8 December 2010 to which I have referred.[22]In paragraph 8, the Employment Judge addresses the question whether there was non compliance with the unless order in the following terms:
“I considered the response of the claimant to the request for further and better particulars. In many areas the particularisation takes matters no further forward at all. I do not accept that the respondent would be any better able to fully understand the claimant’s case following the service of these documents. Accordingly I find that the documents applied did not comply with the 27 th May Order. Following the authority of Marcan Shipping Limited v Kefalas (Court of Appeal) 17 May 2007 , I find that the order striking out the claims took effect on 6 th December 2010 and that all the claims were struck out on that date due to the claimant’s non compliance.”
[23]The Employment Judge then turns to the question of relief of the sanction. At paragraph 9 of the decision he says he has been referred to case law and says as follows:
“… as a general proposition I have to consider whether it was right in the interests of justice and when considering the overriding objective to grant relief to the party in default notwithstanding that breach of the unless order. The matters that I should take into account are inter alia the reason for the default, the prejudice to the other party and whether a fair trial remains possible. The fact that an unless order has been made is an important consideration but not the only one.”
[24]At this point I remind myself that the reference to the overriding objective is a reference to Regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which defines the overriding objective as to enable Tribunals to deal with cases justly which includes so far as is practicable amongst other things: (b) dealing with the case in ways which are proportionate to the complexity or importance of the issues; (c) ensuring that it is dealt with expeditiously and fairly.[25]In paragraph 10 the Employment Judge found that culpability for the extended delay lay solely with the Claimant. He commented that there was a lack of information as to how or why her medical position had impacted upon the delay, and there was no clear explanation as to why the problems of representation had occurred, and why the papers had purportedly been marooned away from the Claimant and why or if there had been any impact.[26]In paragraph 11 he recorded that the Claimant suggested that the default was careless and not deliberate and that blame should be attached to her solicitors; that the Respondent was not prejudiced and a fair trial was still possible and that now new solicitors had taken over delay was unlikely, and that a more appropriate sanction was in the costs.[27]The Respondent disputed those matters. In particular they believe there had been a deliberate attempt to delay matters.[28]In paragraph 13 the Employment Judge indicated that the primary concern was a failure to particularise the discrimination claims. There was sufficient in the ET1 to understand the issues in relation to unfair dismissal. In those circumstances, the Employment Judge concluded that it would be unjust that failure to particularise one set of claims should prejudice a claim that had been understood from the outset, and he concluded that the interests of justice called upon him to allow relief against the strike out order to reinstate the unfair dismissal claim.[29]In paragraph 14 he addressed the question of relief from the sanction in respect of the disability claim. He declined to do so. He said that he was not satisfied as to the explanations for the delay and in the absence of a good reason concluded the failure adequately to particularise in the face of clear warning was a deliberate act on the part of the Claimant. He then said as follows:
“It would be inappropriate to allow particularisation at this stage and wholly unfair to the respondent to try and gather evidence on matters one year after they could have undertaken that task had the claim been brought properly. I conclude there was prejudice to the respondent and the chance of a fair trial is minimised. The DDA claim will remain struck out.”
The Relevant Legal Principles The question of non compliance[30]I am satisfied that as a matter of authority binding on me, the authority relied on by the Claimant in support of her appeal, mainly Reiss v Woolf [1952] 2 QB 557 is no longer good law. In the case of QPS Consultants Limited v Kruger [1999] Westlaw 852867 Lord Justice Simon Brown, as he then was, in a judgment agreed with by both Lord Justice Waller and Lord Justice Tuckey said:
“That in my judgment Reiss v Woolf was not still applicable at any rate in the context of further and better particulars …”
The approach described by

Lord Justice Simon Brown is encapsulated in the following passages from his judgment:

“An order for further and better particulars … is not to be regarded as breached merely because one or more of the replies is insufficient. If the answers could reasonably have been thought complete and sufficient, then the correct view is that they require only expansion and elucidation for which a further order for particulars should be sought and made … Second, although I would regard an Unless Order as breached whenever a reply is plainly incomplete or insufficient, I would not expect the court’s strike out discretion to be invoked, let alone exercised unless the further and better particulars considered as a whole can be regarded as falling significantly short of what was required. Whether this would be so would depend in part on the number and proportion of the inadequate replies, in part upon the quality of those replies including whether their inadequacies were due to deliberate obstructiveness, incompetence or whatever and in part upon their importance to the overall litigation …”

Lord Justice Waller in that case described the approach as follows:

“ …what the court is concerned to examine is whether there has been a genuine attempt to answer the request, that is so because the court will not contemplate enforcing the sanction of strike out either of the particular allegation unparticularised or of the whole pleading, unless there has been a failure or failures to make genuine attempts to answer the request or requests …”
[32]On the question of relief, there are a number of recent authorities on the question of whether a case should be struck out for non compliance with procedural requirements in the context of Employment Tribunal claims whether or not following a failure to comply with an unless order.[33]In Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 [2006] IRLR 630 the Court of Appeal had to consider a strike out on the ground that the manner in which the proceedings had been conducted had been scandalous, unreasonable or vexatious by virtue of the appellant’s wilful and disobedience of orders for disclosure, failure to comply with orders for particulars and so on. In the judgment of

Lord Justice Sedley, with which the other two Judges agreed, he described the principles as follows:

“This power … is a draconic power, not to be readily exercised … two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these two conditions are fulfilled it becomes necessary to consider whether even so striking out is a proportionate response …”
At paragraph 21,

Lord Justice Sedley returned to the issue of proportionality in the following terms:

“It is not only by reason of the convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted must be a proportionate response. The common law … has for a long time taken a similar stance … What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in the case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact – if it is a fact – that the Tribunal is ready to try the claims, or –as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, either ignore the duration or the character of the unreasonable conduct without which the question the question of proportionality would not have arisen but it must even so keep in mind the purpose for which it and its procedures exist … it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality in other words is not simply a corollary or function of the existence of the other condition for striking out. It is an important check in the overall interests of justice upon their consequences.”
[34]That was a case in which the court was dealing with the striking out of a claim rather than, as here, a granting of relief whereby virtue of non compliance with an unless order claims had been automatically struck out. The Court of Appeal, including Lord Justice Sedley in Neary v Governing Body of St Albans Girls School [2009] EWCA Civ 1190 [2010 ICR 473 ] considered the granting of relief in the Employment Tribunal context where there had been non compliance with an unless order leading to an automatic striking out of the claims. In that case each of the three members of the Court referred to the principles identified with Lord Justice Sedley in Blockbuster Entertainment v James as being relevant to the exercise by a court of its discretion to grant relief where there had been non compliance with an unless order and an automatic striking out.[35]In the lead judgment in that case, with which the other two Judges agreed,

Lady Justice Smith said amongst other things as follows:

“49 … It seems to me that a decision such as this is not so much an exercise of discretion as an exercise of judgment … There is a duty on the Judge to decide the case rationally and not capriciously and to make his decision in accordance with the purpose of the relevant legislation taking all relevant factors or circumstances into account. He must also avoid taking irrelevant factors into account. In both cases there maybe two correct answers or at least two answers which are not so incorrect that they can be impugned on appeal. Whereas with the exercise of discretion the question will be whether the Judge’s decision was permissible the evidence with an exercise of judgment the question will be whether his decision was fair. But provided that the Judge has met those requirements his judgment should not be impugned merely because the appellate court would or might have reached a different conclusion.”
She then goes on to state that in this area decisions are very case sensitive but that there are some factors or circumstances which are relevant and that the factors listed in CPR r3.9(1) were good examples. But in each case not all the factors would have relevance; other factors not mentioned in that list may be highly material. Thus, in the Employment Tribunal whilst the list set out in CPR r3.9(1) may be a helpful check list, an Employment Judge is not under any duty expressly to set out his views on every one of those factors. Lady Justice Smith then went on at paragraph 52 to say as follows:
“… the basic requirements are that the Judge must make clear the facts that he has regarded as relevant. He must say enough for the reason for his decision to be understood by a person who knows the background. In a case where the draconian sanction of strike out has been imposed it will be necessary for the Judge to demonstrate that he has weighed the factors affecting proportionality and reached a tenable decision about that. That does not mean that he must use any particular form of words … but it must be possible to see that the Judge has asked himself in the circumstances if the sanction has been just.”
And at paragraph 60 she says:
“… Given that this was a deliberate and persistent failure to provide the particulars it seems to me difficult to criticise the Employment Judge’s conclusion. One of the conditions set out by Sedley LJ in ( Blockbuster ) had been complied with. It is well established that a party guilty of deliberate and persistent failure to comply with a court order should expect no mercy. It seems to me that the Employment Judge was entirely justified in taking the view that a review of the automatic strike out had no reasonable prospect of success. It would have been better if he had said so in terms. However, he did say that the circumstances justified the strike out and it seems to me that he must have meant that and he considered it to be just.”
[36]In his brief judgment, Lord Justice Sedley pointed out that one of the requests for particulars which was unanswered did not appear to him to have been wholly necessary because the Respondent already knew the answer to the request. But in the context of the case it did not make any difference, particulars had been directed and the excuses for not providing them had run out.[37]In the case of Thind v Salvesen Logistics Ltd (unreported UKEAT/0487/09/DA decided on 13 January 2010) the President, Mr Justice Underhill at paragraph 36, in the context of an application for relief against a striking out following non compliance with an unless order, said as follows:
“… all these cases turn on their own facts. I certainly would not wish it to be thought that it will be usual for relief to be granted from the effect of an unless order. Provided that the order itself has been appropriately made, there is an important interest in Employment Tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out in though a fair trial may remain possible. As has been pointed out, the case of Blockbuster did not concern an unless order, and the facts of Neary illustrate that a claim may be struck out even though a fair hearing is still possible – see in particular paragraph 63 and 64 of the judgement.”
[38]Furthermore at paragraph 23, Mr Justice Underhill addressed an argument that it was irrelevant for the Employment Judge when considering whether to grant relief to have regard to the fact that other claims made were not struck out and would proceed to a hearing as a basis for considering a strike out not disproportionate. Mr Justice Underhill said as follows:
“Mr Bryden submits that the matters referred to in this paragraph were wholly irrelevant. Each head of claim should be considered individually and if a claimant is unable to proceed with one, it is immaterial that he may still be able to proceed with another. I think that is to absolute a position. Often different aspects of a claim may overlap and in a case where all or most of what the claimant might have hoped to achieve under one head may be obtainable (if his case is good at all) under another, it may well be reasonable for a Tribunal to put that factor in to the balance in considering the impact of the strike out order. But it is far from clear whether that was the case here.”
Application of the facts to the law Conclusions[39]As I have indicted, the Employment Judge addressed the question of non compliance in a single short paragraph. Although he refers to an authority, that authority concerned only the automatic nature of the strike out arising from non compliance on the 6 December 2010 with the unless order. The Employment Judge addressed the question of non compliance in two brief sentences in which he did not make any reference to any of the requests or the replies. Nor did he give any hint that he had regard to the approach to the question of non compliance as described respectively by Lord Justice Simon Brown and Lord Justice Waller in QPS Consultants , nor did he identify whether the document he was considering was the request for particulars including all the claims made at that time or whether it was limited to the response to the requests in respect of the sole claim which remained for which the request was outstanding, namely the Discrimination Disability Act claim.[40]In my judgment the treatment by the Employment Judge of this important and complex legal issue in the context of this case was so brief and so opaque that the parties really have no sensible means of knowing how he came by his decision and whether or not his decision complied with the law as described above.[41]The pleadings in this case were brief. The requests made were well structured and equally brief as were the responses. It was possible for the Employment Judge to form a view, and to express it, as to whether, either individually or as a group, the answers given to the requests were sufficient or a genuine attempt to answer the requests or whether they fell significantly short of what was required and to particularise his reasoning in such a way that the parties would understand how he had come to his decision. In my judgment he failed to do so.[42]On the issue of relief, once again the decision is contained effectively in a single short paragraph. I agree with the Respondent that, in the face of an unless order, the Employment Judge must have taken it as read that there had been persistent failures to comply with Tribunal orders. I also agree with the Respondent that, on the basis on the material before him and as he described it, the conclusion which the Employment Judge reached could not sensibly be described as perverse when he concluded that the failure to comply with the unless order, which he had found, was deliberate.[43]Furthermore, although the Respondent had not sought to argue that a fair trial was impossible, it is just possible that it was open to the Judge to conclude that the delay in providing the particulars sought might be prejudicial to the Respondent. In any event, on the issue of relief, I am not persuaded that the Judge was necessarily perverse in concluding that one of the two cardinal conditions described by Lord Justice Sedley in Blockbuster had arisen.[44]However, there is no easy way in which the decision can be construed as including an additional consideration of the proportionality of ordering a strike out. It is right to say that what appears to have been determinative in the Employment Judge’s mind was the chance of a fair trial being minimised in the light of the delay which he had concluded was deliberate. But there is no separate consideration of the issue of proportionality, however it may be expressed, even though he had reminded himself that “in the interests of justice” or “the overriding objective”, encompassing as they do the issue of proportionality, were matters which he had to consider. It is to be pointed out that the issue of proportionality is separate to the cardinal principles and has been described as an important check upon the consequences of a strike out. Conclusion[45]I have concluded, therefore, that the Employment Judge has failed, in respect of both elements of his decision, sufficiently to evidence that he has gone through the correct processes in order to ensure that his exercise of judgment was one which could not be impugned at the appellate level. He has failed to demonstrate that he has applied the correct legal approach as described in the case law referred to above. Accordingly this appeal must succeed.[46]I am aware that I have been addressed at length by counsel on the relevant legal principles and on whether or not there is evidence that they have been applied by the Employment Judge and that, fundamental to this appellate jurisdiction, is the recognition of the fact that these are matters ultimately of judgment and that there is no inevitable, or necessarily right, answer, but that different decisions may be sustainable in law.[47]I do not feel confident that I have been exposed to sufficient argument or evidence to enable me to come to a firm conclusion as to whether there has been non compliance, or if not, whether relief from the consequences of that conclusion should be granted, and if so, on what terms.[48]I therefore order that this appeal is upheld and that these two joint issues be remitted to a different Employment Judge for consideration afresh on the basis of whatever evidence and argument the parties may wish to place before him or her.