The hot topic of Unless Orders: when and how should they be made?

As described by an Employment Judge at a recent Preliminary Hearing that we attended, Unless Orders have been a hot topic in 2023. Two recent judgments of HHJ Tayler in the Employment Appeal Tribunal (“EAT”) show that Unless Orders need to be tailored, as any material non-compliance by a party with the terms of an Unless Order will result in the claim automatically being struck out, subject only to a successful application to set aside the order on the basis that it is in the interests of justice to do so (also known as “relief from sanctions”).

This blog explores these recent EAT authorities and concludes by providing key take aways.

Mohammed v Guy’s and St Thomas’ NHS Foundation Trust

Mohammed v Guy’s and St Thomas’ NHS Foundation Trust [2023] EAT 16, handed down on 24 February 2023, is a salutary reminder for Employment Judges to ‘consider with great care’ what the consequence of non-compliance with an Unless Order will be. The judgment also reminds parties to focus on the overriding objective (dealing with a case fairly and justly) – rather than obsessively seeking Unless Orders or expending great energy challenging requests for additional information from the other side instead of simply providing it.

In Mohammed, HHJ Tayler found that the Employment Judge (“EJ”) erred by failing to consider the proportionality of the Unless Order, under the terms of which the claimant’s entire claim would be struck out if there was any material non-compliance with the order. We consider the judgment and the EAT’s conclusions below.

Facts and procedural history

From October 2012, the claimant worked as a Clinical Research Sister in the Research and Development Team at Guy’s and St Thomas’ Hospital. She subsequently brought complaints relating to disability/race discrimination. Some of her claims were set out clearly in the pleadings; others were not. For example, she did not explain which of her allegations fell under the correct legal categories (harassment, reasonable adjustments, direct discrimination etc.). The claimant was legally represented.

At a preliminary hearing in February 2019, the Employment Tribunal (“ET”) ordered the claimant to provide further and better particulars of her claim. The following month, the claimant’s solicitors provided these further and better particulars, but only in respect of her claim for failure to make reasonable adjustments. The solicitors considered that the other claims were adequately particularised.

In March 2019, the respondent made its first application for an Unless Order because the claimant had not adequately particularised her claims. This application was refused. The respondent made a second application for an Unless Order, in September 2019, which resulted in the ET ordering the claimant to provide further particulars in respect of her other claims within 7 days, failing which the ET would consider striking out her claim. The claimant sought an extension of time so that she could obtain alternative legal representation. In January 2020, the respondent made another application for an Unless Order in the following terms (emphasis added):

“… the Respondent seeks an Order that unless the Claimant provide us with further and better particulars of her direct discrimination and discrimination arising claims and complies with the Tribunal’s Order within 7 days, her claim be struck out in its entirety and without further Order …”.

EJ Siddall made an Unless Order in May 2020. The terms of that order stated that if the claimant failed to provide the requested information by 8 July 2020, “the claim will be struck out on 8 July 2020 without the need for any further hearing”. The claimant did not provide the information and, on 22 July 2020, the ET sent an email to the claimant stating that all of her claims for discrimination could not proceed any further.

The EAT decision

The EAT noted at para 12 of its judgment that the Unless Order did not refer to Rule 38 of the Employment Tribunal Rules 2013 that makes provision for Unless Orders, nor did it refer to any of the relevant authorities. This, in itself, is a reminder that advocates should refer to ‘basic’ authorities and the ET should include them, or at the very least cite the substantive principles contained within them, in their judgments.

The EAT also stated that it did not appear that any efforts had been made to ascertain the extent to which each of the claimant’s complaints were (in)adequately pleaded. For example, the direct race discrimination claim appeared to be reasonably clear. Further, the claimant had not named particular comparators for the purposes of direct discrimination, but the claim could still be tried on the basis of a hypothetical comparator. The respondent had not raised any questions about the harassment claim and there had been no order in respect of the detriments in the victimisation claim. Finally, the reasonable adjustments claim was tolerably clear.

As noted at para 20 of the EAT’s decision, it is important to carefully consider the terms of an Unless Order because material non-compliance with part of the order can result in the entirety of a claim being struck out. One way to make the Unless Order less draconian is to tailor its terms so that any allegation which is not sufficiently particularised might be struck out, rather than the entirety of the claim: see Johnson v Oldham Metropolitan Borough Council UKEAT/0095/13/JOJ. HHJ Auerbach summarised the point nicely in Ijomah v Nottinghamshire Healthcare NHS Foundation Trust UKEAT/0289/19/RN in the following way (para 26 of that judgment):

“… because of the draconian nature of an Unless Order, particular care is required both when making and framing such an Order, and when considering whether there has been material non-compliance with it. The authorities particularly highlight the dangers in cases where there are multiple claims, as, were the Tribunal to find itself striking out a claim that it was “perfectly possible to litigate” and in respect of which “no further particulars were required”, on account of failure to comply with an Order in respect of another claim, that would “amount to taking a penal rather than a facilitative approach.””

Despite there being a high bar to interfere with an ET’s discretionary case management order (irrationality and/or perversity), HHJ Tayler found “[T]here is nothing to suggest that the employment judge considered making an order that only those complaints in respect of which there was any non-compliance would be struck out or considered why the much more draconian order that she made was proportionate” (para 29). The EAT also held that the ET could have drawn out the required information as to the claimant’s positions on her substantive claims at a preliminary hearing, particularly once the claimant became unrepresented (para 31).

The EAT therefore found that the Unless Order was made in error of law and that the appeal must be allowed.

Minnoch & Ors v Interservefm Ltd & Ors

The following month, in March 2023, HHJ Tayler handed down judgment in Minnoch & Ors v Interservefm Ltd & Ors [2023] EAT 35. In this case, a case management order required the claimants to supply (emphasis added) “a schedule of loss and damage claimed for each Claimant” and the respondents to serve “counter schedules”. There was ambiguity as to whether the claimants were permitted to serve one schedule which addressed losses in respect of each claimant, or whether they needed to serve separate schedules.

Subsequently, EJ Burns made an Unless Order in the following terms:

“1. The claim of any Claimant who has not by 5pm on 16/12/20 served on the Respondent all the documents pertaining to his/her claim referred to in paragraph 4 of the Case Management Order (following the telephone hearing on 9/10/20) shall be struck out at 5.01 pm on 16/12/2020 without further order.

2. The Respondent is to report to the Tribunal on 17/12/20 the names of those claimants whose claims (i) have been or (i) have not been struck out as per the previous paragraph.”

On 19 December 2020, EJ Burns sent a notice to the claimants stating that their claims had been struck out because they had filed a single schedule of loss (in spreadsheet format) covering all the claimants’ losses, rather than serving separate schedules in respect of each of them.

At para 33 of his judgment, HHJ Tayler helpfully summarises the key authorities on Unless Orders. The principles in those authorities include the following:

– It is rarely a good idea to convert a previous general case management order into an unless order as it may be unfit for purpose.

– Lesser sanctions than strike out could be considered, such as a claimant being limited to reliance on the material set out in the claim form if additional information is not provided.

– If a party is required to do more than one thing by an unless order, careful thought should be given to the consequence of partial compliance.

HHJ Tayler also summarised principles concerning whether to give notice of non-compliance, which include the following:

– If there has been some asserted attempt at compliance, it might be appropriate for the ET to hear oral or receive written submissions.

– The question is whether there has been material compliance – this is a qualitative test.

– The approach should be facilitative rather than punitive and any ambiguity in the drafting of the order should be resolved in favour of the party who was required to comply.

On the facts, HHJ Tayler found that the original case management order (in respect of the schedules of loss) was not well suited to being converted into an Unless Order (para 34). There was ambiguity (contrary to the view of EJ Burns) as to whether a single schedule of loss would suffice. HHJ Tayler considered that the ET’s concerns over the lay-out of the schedule and the importance that it ascribed to whether the schedule of loss was in a single or separate documents, gave precedence to form over substance “to an excessive degree”.

The appeal against the ET’s notice (which struck out the claimants’ claims) succeeded and the matter was remitted to the ET for fresh consideration.

What to take away

Those representing claimants and respondents should cooperate to avoid the situation that arose in Mohammed. At least whilst represented, the claimant should have provided further and better particulars of her claims. Equally, the respondent should have made greater efforts to assist the claimant whilst she was unrepresented, and only sought an Unless Order in respect of the claims which were inadequately particularised.

More generally, Mohammed and Minnoch show that Unless Orders need to be carefully worded as they have draconian consequences. The ET needs to consider the issue of proportionality with great care: automatic strike out of the entirety of a claim needs to be adequately reasoned, justified and proportionate taking into account all relevant factors. The absence of such careful deliberation when deciding whether to make, or when finding that there has been material non-compliance with the terms of, an Unless Order may form the basis of a successful ground of appeal.

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