Where a claim is misconceived, or where a party is not actively pursuing the claim and/or has failed to comply with its orders, the employment tribunal may as a last resort strike out all or part of a claim. Sometimes the failure is caused by the claimant’s representative, and in those circumstances the claimant will often ask the tribunal to take their lack of culpability into account when deciding whether to strike out their claim or allow it to proceed. However, there is a longstanding series of case authorities confirming that the failings of a claimant’s representative will generally not constitute grounds for allowing the claim to proceed, and that if those failings lead to the claim being struck out or dismissed the claimant should instead bring a claim of professional negligence against their representative. The Court of Appeal has recently cast significant doubt on this well-established principle.
The Court of Appeal was considering whether an employment tribunal had erred when it struck out various employment claims due entirely to the failings of the claimant’s representative. Following her dismissal for failure to obtain a mandatory qualification, P had brought claims of unfair dismissal and discrimination against her former employer. P listed a representative on her claim form, so all correspondence with the employment tribunal was via that representative. The employment tribunal eventually struck out P’s claims on the basis that the P had not complied with tribunal orders, had not actively pursued the claim, or made representations to the tribunal when invited to do so.
P asked the tribunal to reconsider its decision to strike out her claims and gave the tribunal evidence demonstrating that the failings which had led to her claims being struck out were entirely the responsibility of her representative. One of the key failings which had led to P’s claims being struck out was the failure of P’s representative to comply with the tribunal’s order that he should personally provide it with medical evidence to justify the last-minute postponement of the main hearing of the claim after he had suffered a medical emergency which meant he could not represent P at the hearing. In seeking relief from strike out, P also pointed out that all the tribunal’s correspondence had been sent to her representative and not her, so the first she knew of the issues was when her claims were struck out. The tribunal refused to set aside its strike out order and P went on to unsuccessfully appeal that decision to the EAT.
The Court of Appeal upheld P’s appeal and set aside the strike out of her claims. The Court noted that both the tribunal and EAT had felt bound to follow the line of previous EAT level case authorities which suggested P’s claim was now one of professional negligence against her representative. However, the Court held that this was an exceptional case which justified departing from those case authorities. The Court took the view that, in weighing up the interests of justice, the fact that P had not been personally at fault for the failures, together with the fact she had not had an opportunity to present her substantive case before the employment tribunal, substantially outweighed the public interest in finality of litigation and any prejudice to the employer.
The fact P had an alternative remedy for professional negligence against her representative was a significant factor in favour of not setting aside the strike out of her claims, but this had to be balanced against the fact that bringing a professional negligence claim against her representative would involve P incurring significant costs (in the absence of legal aid), and such a claim would also involve P overcoming significant evidential difficulties. Taking these difficulties into account, the Court went on to conclude that the possibility of P bringing a professional negligence claim was ‘wholly unrealistic’ – the Court said that ‘the obvious conclusion is that the alternative remedy is a figment of the imagination’.
The Court held that, in the future, where it is argued that one factor weighing against allowing a claim to proceed is the fact a party can instead claim damages for professional negligence against their representative, this argument should be ‘treated with scepticism’ by the tribunal and/or EAT. The Court also invited the Employment Tribunal President to ensure that claimants, alongside their representative, are in future sent a copy of any unless orders where non-compliance may lead to the strike out of their claims.
Phipps v Priory Education Services Ltd [2023] EWCA Civ 652
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
