Feb 24
The claimant employee submitted a claim to an employment tribunal alleging race and disability discrimination, including complaints of harassment and failure to make reasonable adjustments, against the respondent NHS trust. At a case management hearing, an employment judge ordered the claimant to provide further and better particulars of the claims, as identified in a draft list of issues provided by the respondent. The claimant provided further details of the reasonable adjustments claim but asserted that the other claims were adequately particularised. The respondent unsuccessfully applied for an “unless order”, pursuant to rule 38 of the Employment Tribunals Rules of Procedure 2013, requesting that, unless the claimant provided further details of her claim, it would be dismissed. Subsequently, the respondent successfully applied for an order requiring the claimant to provide further particulars, failing which consideration would be given to striking out the claim. The claimant sought an extension of time, stating that she was seeking alternative legal representation. The respondent was then granted a further order that, unless further particulars were provided within seven days, her claim would be struck out in its entirety. Delays followed and additional information was requested by the respondent, repeating the questions previously asked and seeking further details of the reasonable adjustments complaint, although no request was made for further information in respect of the harassment claim. Two years after the initial claim, an employment judge made a final unless order in terms that, if the information requested was not provided by the stated date, the claim would be struck out without further order. When the claimant failed to provide further details, but sought reconsideration of the order, her claim was struck out in its entirety.
On an appeal by the claimant—
Held, appeal allowed. Rule 38(1) of the Employment Tribunals Rules of Procedure 2013 distinguished between orders in respect of which non-compliance would result in the dismissal of the claim and those where it would result in the dismissal of part of the claim. The “claim” meant the entirety of the complaints set out in the claim form, so that where there were a number of complaints in a claim form an unless order requiring particulars of the complaints could provide either that, if there was non-compliance, the claim would be struck out or only that the part of the claim in respect of which there was non-compliance would be struck out. Before making an unless order, an employment judge had to consider the consequence of non-compliance and be satisfied that the strike out of the entire claim, without further consideration of proportionality or the interests of justice, was a proportionate response to any material breach of the order, no matter how minor. Generally it would be proportionate to limit dismissal of a claim to any cause of action in respect of which there was a material failure to provide additional information. An order dismissing the whole claim, if there was a material failure to provide additional information in respect of any one of a number of requests, would generally only be appropriate where there had been serious ongoing default in compliance with the tribunal’s orders that suggested that the claimant was refusing to engage with the tribunal process, and where there had been express consideration of why such a draconian order was required, when a more focussed order could be made. In the present case, the employment judge had erred in failing to refer to rule 38 and to the authorities that stressed the care needed before making an order resulting in the entire claim being struck out, and had failed to take into account that any breach of the order would result in the whole claim being struck out, including the claim of harassment, where no request for particulars had been made, and the claims of direct race discrimination and failure to make reasonable adjustments which had been substantially particularised. That, since there were issues still requiring additional information, the claimant would be directed to finalise her answers to the draft list of issues in order for the case to return to the employment tribunal to be listed for a final hearing (paras 16, 22, 28–29, 32).
Alice Mayhew KC (instructed directly through Advocate) for the claimant.
Nathaniel Caiden (instructed by DAC Beachcroft LLP) for the respondent.