Case Summary: Sivanandan v Independent Office for Police Conduct & Penna PLC [2025] EAT 7

Background: 

This case concerns Ms. N. Sivanandan’s appeal in relation to an Employment Tribunal’s (ET) decision to grant Penna PLC (Penna) relief from sanctions after it failed to comply with an "unless order." The dispute originated from Ms. Sivanandan’s claims of direct and indirect sex and race discrimination, which were dismissed by the ET following a full merits hearing in 2016. Penna subsequently sought costs against Ms. Sivanandan, leading to protracted litigation over compliance with procedural deadlines. 

Key Issues: 

1. Failure to Comply with an Unless Order: 

• The tribunal issued an unless order requiring Penna to serve a costs schedule by 5 pm on 20 December 2021. Penna missed this deadline by approximately four hours. 
• The tribunal automatically deemed Penna's costs application dismissed due to non-compliance but later granted relief from sanctions, allowing the costs application to proceed.

2. Relief from Sanctions: 

• Penna sought relief, citing reasons for the delay, including missing documentation, technical issues, and a representative’s illness. The ET accepted these explanations and determined that the delay caused minimal prejudice to Ms. Sivanandan while denying Penna relief would have significant consequences.

3. Claimant's Appeal: 

• Ms. Sivanandan appealed the decision, arguing procedural unfairness, failure to consider relevant factors, and errors in applying legal principles. 

Employment Appeal Tribunal (EAT) Decision: 

The EAT dismissed the appeal, upholding the ET’s decisions on the following grounds: 

1. Procedural Compliance: 

• The unless order was validly issued under Rule 38 of the Employment Tribunal Rules of Procedure 2013. The ET was correct to assess Penna’s application for relief under Rule 38(2), which allows decisions to be made on written representations unless a hearing is requested.

2. Interests of Justice: 

• The ET rightly considered that the delay caused no significant prejudice to Ms. Sivanandan, whereas denying relief would prejudice Penna significantly. The decision was consistent with the principle of ensuring fairness.

3. Opportunity to Make Representations: 

• Although Ms. Sivanandan argued she was not given a fair opportunity to respond, the EAT found she had ample time and opportunity to submit her objections during the process.

4. Discretion and Perversity: 

• The ET's decision to grant relief was discretionary and not perverse. It appropriately weighed factors such as the reasons for non-compliance, the seriousness of the default, and the overarching goal of justice.

5. Finality and Prejudice: 

• The tribunal acknowledged the lengthy history of the case and Ms. Sivanandan’s concerns but balanced these against the need to resolve the costs application on its merits. 

Significance: 

The judgment emphasises the importance of procedural fairness while acknowledging that the overarching goal is justice. It clarifies the application of Rule 38 and highlights that relief from sanctions can be granted even where compliance failures are admitted, provided there is a strong case for fairness. 

Trade union representatives should note the importance of timely compliance with tribunal orders and the conditions under which relief may be sought. This case also serves as a reminder of the tribunals' discretion to weigh the broader interests of justice over procedural defaults. 

Outcome: 

Ms. Sivanandan’s appeal was dismissed. Penna’s costs application remains live, and the tribunal will determine its fate along with unresolved issues regarding the deposit previously ordered in the case.