Tribunal: Judge erred in his analysis
A solicitor has had his employment claim against his former firm reinstated in large part because it failed to copy him into its correspondence with the tribunal.
His Honour Judge James Tayler in the Employment Appeal Tribunal (EAT) held that Judge Burge had been wrong to strike out Mr S Wakeman’s claim for failing to comply with an unless order.
The solicitor worked for Kent firm Boys & Maughan for 19 months to May 2019, when he was dismissed. In September 2019, he brought a claim for automatic unfair dismissal, age and sex discrimination or harassment, notice pay, holiday pay and other payments.
The tribunal described him as “an experienced solicitor” who worked for the firm as a civil litigator and also had conduct of employment tribunal proceedings.
In bringing his claim, Mr Wakeman refused to communicate with the firm by email, corresponding only by email.
Complaining that the solicitor had not complied with his disclosure obligations, Boys & Maughan sought an unless order in May 2020, shortly after the deadline passed.
While this was copied to the claimant, subsequent emails chasing the tribunal to act, and also criticising the way in which Mr Wakeman was conducting the litigation, were not.
In December 2020, the tribunal issued an unless order in relation to disclosure and witness statements.
Mr Wakeman applied to have this set aside, in part because it had been obtained after the tribunal had considered correspondence from the law firm that he had not seen.
The order was rescinded in May 2021 and a second unless order made. The tribunal criticised Boys & Maughan for “consistently” failing to copy the claimant into correspondence.
HHJ Tayler noted that the second unless order was made on consideration of the law firm’s original application rather than of the judge’s own motion. Mr Wakeman then provided his disclosure but not his witness statement.
At a preliminary hearing in March 2022, Judge L Burge struck out the claim, saying the solicitor had “wilfully” failed to adhere to the tribunal’s deadlines, despite having plenty of time to do so.
On appeal, HHJ Tayler said that while Mr Wakeman “has not help[ed] himself by insisting on only accepting correspondence by post and by the combative tone of his letters”, the judge’s errors required him to allow the appeal.
Boys & Maughan’s failure to provide Mr Wakeman with its correspondence remained the case when the second unless order was made, he explained.
“Being provided with correspondence that is sent to the employment tribunal by the other party is a key component of fairness which explains the multiple safeguards that should prevent an order being made on the basis of correspondence that a party has not seen…
“The claimant did have an opportunity to complain about the making of the first unless order but did not have an opportunity to comment before the second unless order was made.”
Judge Burge was wrong to say that the failure to copy Mr Wakeman in did not taint the making of the second order, the EAT said, as “the position had not changed significantly when the second unless order was made”.
It also found Judge Burge was wrong to say that the prejudice to Boys & Maughan was “too great in having to defend a claim where the claimant wilfully failed to adhere to tribunal deadlines”.
At the time of the preliminary hearing, no final hearing had been fixed, after an original date in September 2020 was lost due to the pandemic.
“The view of Employment Judge Burge that there was an extensive history of non-compliance would appear to come from consideration of the emails that the claimant had not seen before the second unless order was made,” HHJ Tayler said.
“I do not consider that Employment Judge Burge sufficiently analysed the matter when deciding whether a fair trial remained possible, particularly as there was no date for a final hearing.
“Employment Judge Burge should have considered dealing with the concerns that the claimant had raised about the respondent’s disclosure, listing the hearing and providing a new date for exchange of witness statements, supported by an unless order if necessary.”
HHJ Tayler remitted the matter to a different employment tribunal for reconsideration.
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