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A Procedural Pigs' Breakfast

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[Thanks to Michael Duggan of Littleton Chambers, who successfully represented the employer, for providing this summary]

"A procedural pigs' breakfast" was the description given by Underhill P. to the strike out provisions of the Employment Tribunal Rules of Procedural 2004 in North Tyneside Primary Care Trust v Ms Aynsley and others, handed down on 8th May 2009.

An Unless Order was made against the Trust in one of the multiple equal pay claims proceeding in Newcastle to disclose various categories of information relating to comparator groups by 20th May 2008. The Employment Judge found that there had not been compliance so hat the Trust’s Response was struck out without the need for any further order under Rule 13(2). The Trust had remedied the defects in provision of information by the time a review hearing took place on 16th July 2008 but the Tribunal refused the review, purportedly under Rule 34.

After considering the rules in some detail (see paragraphs 23 to 29) Underhill P held that a the strike out of a Response could not be reviewed under Rule 34 as it was not a judgment or final determination of the proceedings. However, it could be reconsidered under Rule 10(2)(n) and CPR 3.9. should be taken into account.

Underhill P stated that the breach of an Unless Order was only one factor to be considered. The Employment Judge had seriously overstated the extent of non-compliance and explanations had been provided for any gaps. The Tribunal Judgment was set aside.

The case is an indictment of the convoluted provisions of the 2004 Rules as well as providing a useful illustration of when it is appropriate for there to be relief from the consequences of an Unless Order.