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Employment tribunals urged to bear Denton in mind when faced by procedural defaults


termination of employment [1]

Employment tribunals should also “have regard to cost”

Employment tribunals should have regard to the “insight given by cases such as Mitchell” into what constitutes justice, Mr Justice Langstaff, president of the Employment Appeal Tribunal, has ruled.

The president said justice was “not simply a question of the court reaching a decision that may be fair as between the parties in the sense of fairly resolving the issues – it also involves delivering justice within a reasonable time.”

Langstaff J said employment tribunals must “also have regard to cost”.

“Even if the employment tribunal is not in the same position as the civil courts because there is no cost-shifting regime, it was designed as a cost-free forum in so far as party-and-party costs were concerned.”

Delivering judgment in Harris v Academies Enterprise Trust and others (UKEAT/0097/14/KN), Mr Justice Langstaff said “overall justice” also meant that “each case should be dealt with in a way that ensures that other cases are not deprived of their own fair share” of court resources.

“If a case drags on for weeks, the consequence is that other cases, which also deserve to be heard quickly and without due cost, are adjourned or simply are not allotted a date for hearing.”

Langstaff J said employment tribunal rules had not “lagged behind” the CPR, but were “freshly and newly drafted and brought into force in 2013 in full knowledge” of the approach the CPR were taking.

The president said it was difficult to “draw too much” from Denton or the other cases following Mitchell, and employment tribunals were not expected to “deal with a claim as if the CPR applied when they do not”.

However, he added: “I do not wish what I have said to let it be thought that judges should be unduly forgiving of procedural default by parties.

“Rules are there to be observed, orders are there to be observed, and breaches are not mere trivial matters; they should result in careful consideration whenever they occur.

“It is a matter of frequent complaint to this tribunal, in particular by litigants in person, that orders have not been observed to the letter by the other party to the litigation.

“Tribunal judges are entitled to take a stricter line than they may have taken previously, but it remains a matter to be assessed from within the existing rules and the principles in existing cases.”

Rejecting the claimant’s arguments that the response should be struck out following a failure to exchange witness statements, Langstaff J dismissed the appeal.