Although tribunals should generally only strike out the parts of a claim which have not been set out in enough detail by a claimant, the Employment Appeal Tribunal (EAT) held in Rojha v Zinc Media Group plc that the tribunal was entitled to strike out all the claims lodged by Ms Rojha because they were connected to one another.
Basic facts
After being dismissed for redundancy, Ms Rojha brought claims of unfair dismissal, race, sex and/or pregnancy and maternity discrimination. She also sought a redundancy payment, arrears of pay and other payments.
In their response to her claims, her former employer complained that her case was “inadequately particularised” and asked her to provide further details.
Tribunal decision
However, Ms Rojha failed to provide additional information. She also failed to attend the first case management hearing, which the judge criticised as “not [being] a responsible way to behave”. He ordered her to provide further particulars of her complaints of race discrimination, unauthorised deductions, and for a statement of all the remedies she claimed. In addition, he made a deposit order requiring her to pay a sum of money to continue with her claims of sex and/or pregnancy and maternity discrimination.
Ms Rojha did not comply with those directions, nor did she pay the deposit. At a second hearing that she also failed to attend, the tribunal made an order relating to its earlier directions, stating that if she did not comply with them, her entire case would be struck out (an unless order). The tribunal duly struck out all her claims as she did not comply.
She appealed, arguing that an unless order “should not have the effect of depriving a party of a claim … which is properly pleaded and perfectly capable of being fairly litigated”. Therefore, the judge should not have struck out her claims for unfair dismissal and contractual redundancy payment just because she had failed to provide particulars regarding her claim of race discrimination. Alternatively, she argued that it was disproportionate to strike out her unfair dismissal and contractual redundancy payment claims because she had failed to provide a schedule of loss.
EAT decision
Dismissing the appeal, the EAT held that the tribunal judge was perfectly entitled to make an unless order threatening to strike out her entire case, including her claims of unfair dismissal and redundancy pay as the direction for further particulars had specifically related to the redundancy pay claim which she had connected to the complaint of race discrimination.
As for her unfair dismissal claim, the EAT pointed out that Ms Rojha had also linked that claim to her race discrimination complaint. So although the onus was on her former employer to establish the reason for dismissal, the tribunal was entitled to strike it out in these circumstances.
Given those considerations, the tribunal judge was entitled to conclude that the sanction for non-compliance with the unless order should apply to all her claims to enable the tribunal to ensure the fair and just management of the case. Taken together with Ms Rojha’s conduct of the proceedings, the tribunal judge was entitled to see the case-wide sanction of the unless order as a necessary and proportionate measure.
As for the deposit order, the judge had tried hard to identify the claims and issues before concluding that the complaint of sex and/or pregnancy and maternity discrimination had little reasonable prospect of success. Taking the case at face value, there was no reason for the tribunal judge to consider that any further particulars were needed or would help in the circumstances.