Can an Employment Tribunal overturn an order for strike-out on the grounds of solicitor misconduct?

The answer to this is yes, said the Court of Appeal in Phipps v Priory Education Services Ltd [2023] EWCA Civ 652, provided it is necessary in the interests of justice.

Rhiannon Jones in our Employment and Immigration team reviews the decision the Court of Appeal came to in a recent case: Phipps v Priory Education Services Ltd.

Background

In 2017, the claimant, Mrs Lynn Phipps, lodged claims for unfair dismissal, age and disability discrimination, harassment, victimisation, “less favourable treatment”, and “fundamental breach of contract”.

On 8 March 2018, just one clear working day before the final hearing was due to start, her solicitor, Mr Johnstone of One Assist Legal Services (OALS), filed an application for adjournment on the grounds that he, the legal representative, had suffered a “medical emergency”, namely a brain infection.

The application was granted. However, the Employment Tribunal (ET) ordered that Mr Johnstone provide medical evidence showing three things:

• That he had been unfit to attend the hearing on 12 March
• The diagnosis of his condition
• How long he would be unfit to attend any hearing.

Though a medical letter was produced on 9 March 2018, this did not comply with the order.

The final hearing was relisted for 7 – 10 January 2019, and a chaser was sent to Mr Johnstone on 9 April 2018 requesting the outstanding medical evidence.

Between 9 April 2018 and 4 January 2019, numerous strike-out warning letters were issued to Mr Johnstone, yet no genuine attempts were made to comply with the order. Consequently, on 4 January 2019, the ET issued a written decision striking out the claim.

On 14 January 2019, the claimant applied to the ET for reconsideration of the 4 January 2019 decision on the grounds that:

1. OALS did not take any steps to prepare for the 12 March 2018 hearing,
2. She did not know about the application to adjourn,
3. She did not know about the order of 9 March 2018,
4. She did not know about the strike-out warnings, nor OALS’ failure to respond to them,
5. She did not know what was happening with her claim until after it had been struck out, and
6. She had been deceived and lied to by OALS and this made it impossible for her to speak to them.

The decision of the Employment Tribunal and Employment Appeals Tribunal

In their judgments dated 3 July 2019 and 6 October 2021 respectively, the ET and EAT rejected the claimant’s application for reconsideration on the grounds that it was not “in the interests of justice” to do so.

The ET also relied on the case of Lindsay v Ironsides Ray and Vials [1994] ICR 381, which states that failings of a party’s representative will not generally constitute grounds for review.

Following this, Mrs Phipps appealed to the Court of Appeal.

Decision of the Court of Appeal

In its judgment dated 9 June 2023, the Court of Appeal (CoA) overturned the decisions of the ET and EAT and revoked the order for strike-out. This was because:

• “The strike-out occurred entirely because of the improper conduct of the claimant’s representative
• As the ET found, the claimant was not implicated in this misconduct and had no knowledge of what was happening until she received the strike-out decision
• The application for reconsideration was made within 10 days of the strike-out decision
• The claimant had not at any stage been given a fair opportunity to present her case
• Any supposed alternative remedy was fanciful.”

These factors substantially outweighed the public interest in finality of litigation, and the injustice to the employer in having the case restored. Thus, the appeal was granted and the order for strike-out was revoked.

Interestingly, at paragraph 43 of its judgment, the CoA invited the President of Employment Tribunals in England and Wales to consider “a modest change in practice”, which would require the tribunal to send out strike-out warning letters to the party personally, as well as to their legal representative.