Greene v London Borough of Hackney EAT/1182/98 and EAT/504/99
Employment Appeal Tribunal Unreported 23 November 1999
Requests for further and better particulars are depressingly familiar to applicants' representatives in tribunal claims, particularly discrimination cases. Sometimes, no matter how much information you put in the originating application, the respondent comes back with a swingeing request.
In this case, the Tribunal had made an order for the applicant to answer 18 requests for further particulars. When the applicant did not comply, her case was struck out. She appealed and supplied some answers late.
The Employment Appeal Tribunal held that the strike out order should not have been made without first considering less punitive sanctions, such as an "unless" order, so-called because it states that unless the particulars are provided by a certain date, the claim will be struck out.
The ultimate test is whether a fair trial can go ahead without the other side having the particulars that have been ordered. The Tribunal had asserted that "memories fade and people cease to be available". That was insufficient and a general statement of no value unless backed up with evidence and findings on the question and an analysis of the importance of the factor in whether unacceptable prejudice was caused.
So far so good, but the EAT were not impressed by replies that simply referred to a document, in the possession of the parties. In future representatives may need to quote the actual extract from the document they are referring to.
In Greene, the Respondent wanted to know both the particulars and the evidence of the unfavourable treatment which the Applicant alleged. It was not enough for the Applicant to say that evidence would be provided by the Applicant in the course of giving her evidence. The Employment Appeal Tribunal considered that this was information which the Respondent was entitled to know and the Tribunal would be entitled to order. No distinction was made between the obligation to state the grounds relied on and reserving evidence for the hearing.
This case is an example of the increasing importance being attached to the paperwork in tribunal claims. Tribunals encourage provision by both sides of as much information and detail as possible before the hearing.
This is a wind of change which blows in two directions in theory only. Since in discrimination cases it is for the applicant to prove his or her case the information tends to flow in one direction only. But perhaps in some cases respondents are simply getting their own back after completing a discrimination questionnaire.