[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]
The Court of Appeal has handed down its decision in The Governing Body of St Albans Girls' School v Neary, which is authority for the proposition that an employment judge considering an application for review of a sanction is not under an obligation to expressly consider each of the potentially relevant factors set out in CPR 3.9 (overturning the EAT's decision). It should be inferred that Parliament deliberately did not incorporate CPR 3.9 into employment tribunal practice.
In considering an application for relief from sanctions, the employment judge must make clear the facts that he has regarded as relevant and say enough for the reason for his decision to be understood by a person who knows the background. Where the sanction of strike-out has been imposed, the judge must show that he has weighed the factors affecting proportionality and reached a tenable decision about it. He need not use any particular form of words, but it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just.
Previous EAT authorities requiring an employment judge to take into account all CPR 3.9 factors are no longer good law.
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