Phipps v Priory Education Services Ltd [2023] ICR 1043

When considering an application for reconsideration as per rule 70 of the Employment Tribunals Rules of Procedure 2013, the "interests of justice" test is expansive, allowing the employment judge significant discretion.

A representative's failings generally wouldn't be a ground for review if the concerned party had an opportunity to argue their case. There's a strong public interest in litigation finality.

Exceptionally, if a party hasn't been given a fair chance to present their case due to significant procedural shortcomings, reconsideration would be apt.

The potential alternative remedy of claiming damages for professional negligence, due to the misconduct of an unregulated representative, should be approached with caution when weighing against reconsideration of a strike-out decision.

A change in practice regarding strike-out applications is suggested to ensure both the party and the representative receive warning letters under rule 37(2) of the Employment Tribunals Rules of Procedure 2013.

Facts and Application of the Law:

The claimant sought a claim, notably for unfair dismissal, against her employer. However, due to her representative's medical emergency, the hearing was adjourned. Despite being ordered to provide medical evidence for the adjournment, the representative failed to comply, leading to a series of strike-out warnings and the eventual striking out of the claim.

Although the claimant was unaware of these warnings, the decision to strike out her claim was upheld, relying on the principle that representative's shortcomings usually don't form the grounds for review. This led the claimant to appeal to the Employment Appeal Tribunal.

Using precedents like Newcastle-upon-Tyne City Council v Marsden and considering others such as Trimble v Supertravel Ltd and Lindsay v Ironsides Ray & Vials, the EAT allowed the claimant's appeal. The decision was heavily influenced by the fact that the claimant was denied a fair opportunity to present her case due to her representative's misconduct. The balance leaned in favor of the claimant when comparing the public interest in litigation finality against her right to a fair hearing.

Per curiam notes underscored skepticism towards viewing professional negligence claims as an alternative remedy and suggested ensuring both parties and representatives receive strike-out application warning letters.

For those looking to appeal to the Employment Appeal Tribunal from the Employment Tribunal, this case underscores the importance of fair representation and the possible recourse when a party is denied a proper hearing due to representative shortcomings