Thread by @JasonBraier

1/ Polyclear Ltd v Wezowicz: in considering strike out for failure to comply with an unless order, the ET should consider what attempts were made to comply & the extent of failure in material compliance when weighing the interests of justice.

assets.publishing.service.gov.uk/media/60d33cc5…

#ukemplaw

2/ In this unfair dismissal/race discrimination claim, 1 issue was whether Polish workers at the respondent plastic manufacturer were required to work on machine which required harder work than those allocated to Indian workers.

3/ At a PH, the EJ ordered disclosure of job sheets by way of cross-reference to a written request from the claimants, which appeared to ask for 30 job sheets for two sets of machines, all for the same date.

4/ It wasn't possible to comply with a literal interpretation of that order, as job sheets covered more than one day but emailed 256 pages of documents to allow a meaningful comparison to be made (albeit W's rep said he never received this email).

5/ At a further PH, an EJ found the email wasn't sent & made an unless order that the job sheets as per the letter be disclosed within 2 days (by 4pm). In time, P emailed a link to the job sheets & also explained they were collating them into a bundle for ease of analysis.

6/ What P didn't do, for some reason, was to explain why it was impossible to comply with the strict terms of the order given that job sheets don't relate to an individual day. An indexed bundle was sent at 18:33 that day.

7/ W wrote to the ET noting what had been received but complaining of material non-compliance. They complained the documents weren't a snapshot of 1 day as per the ET's order. As there had been material non-compliance, the REJ gave notice of dismissal of the response.

8/ An application for relief was made, asserting that strict compliance was impossible. Relief was refused. The EJ noted P could have explained its difficulties & explained what it 'could' do, or to vary, suspend or set aside the unless order or appealed against it.

9/ The EJ refused the relief application, making no reference to the efforts to comply on the date the unless order set, but only to later efforts through which an additional 10 job sheets were provided.

10/ The EAT noted the need for particular care in the making of unless orders, given their draconian consequences.

11/ The EAT considered the EJ in refusing relief failed to have any regard to the attempts at compliance on the date by which compliance was required. She clearly erred in law by that failure.

12/ Obiter, HHJ Tayler observed that if an EJ grants relief, the effect is to set aside the original unless order & that therefore the strike out is treated as not having occurred.

13/ The EJ at that final stage isn't ruling on whether there was a failure to materially comply & hence whether or not the automatic strike out was correctly applied. That would be to require an EJ to reconsider a different EJ's judicial decision.

14/ Notwithstanding that, the extent of material non-compliance was important to the determination of the interests of justice at the relief stage.

15/ As a matter of procedure, HHJ Tayler considered that where there may be real issues about whether or not a party is in material non-compliance, it might be best for both the question of automatic strike out & of relief to be dealt with by the same EJ at the same hearing.

16/ Whilst doubtless sensible, it seems to me difficult to marry this approach to the wording of r.38(2), which requires an application for relief to be made within 14 days of the date of notice of automatic dismissal. Perhaps a sensible amendment to r.38(2) is in order?

17/ Anyway, this is yet another great win for my virtual roommate @RadBarrister in yet another seismic, landmark appeal (@MichaelFordQC is that an approved description?) #ukemplaw