Miss S Bharaj v 1) Santander UK PLC 2) Mrs Alison Simmons 3) Mr Dean Robinson
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Stacey |
| Court | Employment Appeal Tribunal |
| Published date | 08 March 2024 |
Judgment approved by the court Bharaj v Santander UK PLC & others
© EAT 2023 Page 1 [2023] EAT 152
Neutral Citation Number: [2023] EAT 152
Case No: EA-2021-001295-JOJ
EA-2022-001400-JOJ
IN THE EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 9 November 2023
Before:
THE HONOURABLE MRS JUSTICE STACEY
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Between:
MISS S BHARAJ
Claimant
- and -
(1) SANTANDER UK PLC
(2) MRS ALISON SIMMONS
(3) MR DEAN ROBINSON
Respondents
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MR CHRISTOPHER MILSOM (instructed by Keystone Law) for the Claimant
MR PAUL NICHOLLS KC (instructed by EMW LLP) for the Respondents
Hearing date: 9 November 2023
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JUDGMENT
Judgment approved by the court Bharaj v Santander UK PLC & others
© EAT 2023 Page 2 [2023] EAT 152
SUMMARY
PRACTICE AND PROCEDURE
There was no error in the EJ’s decision to strike out the claimant’s claims of whistleblowing,
sex discrimination and sex harassment for non-compliance with a Tribunal order under rule
37(1)(c). Since a strike out is a terminating ruling, by common law and Art.6 the striking out
of a claim or response must be proportionate. Proportionality principles circumscribe the
scope of the ET’s wide discretion in matters of case management. There will usually only be
one proportionate response. If there has been a finding of unreasonable conduct or breach of
tribunal order under rule 37 and if no less drastic measure would enable a fair trial to take
place within the trial listing, the striking out of a claim or response will be proportionate, save
in exceptional circumstances. The EJ’s decision to strike out the claimant’s claim was
proportionate and there were no exceptional circumstances in this case. The appeal fails.
Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, Blockbuster Entertainment
Ltd v James [2006] IRLR 630; Baber v The Royal Bank of Scotland UKEAT 0301/15/JOJ &
UKEAT0302/15/JOJ and Emuemukoro v Croma Vigilant (Scotland) Ltd & Ors [2022] ICR
327 followed.
When considering the exercise of the ET’s powers in a reconsideration application under rule
70, cases concerning other jurisdictions with different procedural rules such as AIC Ltd v
Federal Airports Authority of Nigeria [2022] UKSC 16 are of no assistance.
Judgment approved by the court Bharaj v Santander UK PLC & others
© EAT 2023 Page 3 [2023] EAT 152
THE HONOURABLE MRS JUSTICE STACEY:
1. Miss Simran Bharaj appeals two decisions of Employment Judge Glennie
sitting at the London Central Employment Tribunal in her claim against her
former employer, Santander UK Plc, and two employees named as individual
respondents, Mrs Alison Simmons and Mr Dean Robinson. I shall continue to
refer to the parties as they were before the tribunal.
2. In the first appeal, she challenges the decision to strike out her claim pursuant
to rule 37(1)(c) of the Employment Tribunal (Constitution and Rules of
Procedure) Regulations 2013 (“the rules”) for failure to comply with an order
of the tribunal, which was sent to the parties on 2 March 2021 (“the strike out
decision”). In the second appeal, she challenges the decision refusing her
reconsideration application to the tribunal which was sent to the parties on 8
July 2022 (“the reconsideration decision”).
3. The parties agreed that the fate of the appeal against the reconsideration decision
would be decided by the outcome of the appeal in the strike out decision. If the
appeal against the strike out decision fails, so too will the reconsideration
decision appeal. If the appeal against the strike out decision succeeds, there will
be no decision left to reconsider and the reconsideration appeal falls away.
Whilst it is not therefore necessary to decide the reconsideration appeal, as the
issue had been raised and fully ventilated, the parties suggested it would be
helpful for this tribunal to consider the point anyway. It raises the narrow point
of whether the employment judge erred in applying the judgment of the
Supreme Court (AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC
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