Mr S Cogan v Sir Robert Pattinson Academy — 2021

At a hearing on 25 January 2021, Employment Judge Hutchinson sitting alone considered the Claimant's application to set aside an unless order made on 24 November 2020. The Judge said the order had been made on the mistaken understanding that there had been total non-compliance with the case management order of 16 September 2020, when in fact the Claimant had sent a schedule of loss late and later provided further mitigation material. The unless order was set aside under Rule 29 of the Employment Tribunal Rules of Procedure 2013 because it was necessary in the interests of justice, including because the Claimant had not had a reasonable opportunity to make representations before the order was made.

The Claimant then applied for costs against the Respondent under Rule 76, arguing that the Respondent had acted unreasonably in pursuing the strike-out/unless-order application. The Tribunal refused that application. It held that the Respondent was entitled to seek an unless order because the Claimant had breached the 16 September 2020 order by the deadline, had not applied for an extension of time, and had only partially complied when the schedule of loss was eventually provided on 18 November 2020. The Judge said it was not unreasonable conduct to ask for an unless order and that, even if it had been, he would not have exercised discretion in the Claimant's favour.

The judgment did not determine the underlying discrimination claims. It recorded that the Claimant alleges victimisation arising from an email about a pupil's disability, and direct sex discrimination, and it listed an open preliminary hearing for 5 March 2021 to consider whether those claims should be struck out under Rule 37 or whether a deposit order should be made under Rule 39. The schedule of loss filed in the proceedings was valued at £54,944.88, but no monetary award was made in this judgment.