Strict Compliance with an Unless Order Required

Rule 38 of the Employment Tribunal Rules of Procedure 2013 allows an employment judge to issue an “unless order” to a party in the proceedings, but more often than not a claimant.

This is a harsh order that imposes upon the recipient an obligation to faithfully comply with all the conditions in the order and, if this is not done, then the claim will be dismissed without any further hearing or opportunity to make submissions before that dismissal takes place. This is set out in Rule 38(1):

An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.

ET Rules of Procedure 2013, Rule 38(1)

It is the word “shall” in Rule 38 that is key, the employment judge will have no choice but to dismiss the claim if there is not compliance with an unless order (but as my last post showed, only if there has actually been an unless order).

The recent case of Bauhaus Educational Services Limited v Elemide (2023) shows how harsh that approach can be. The claimant was issued with an unless order requiring him to serve the Respondent with his witness statement by 27 October 2021. The order was in clear terms: “Unless by 27 October 2021 the Claimant serves a witness statement on the Respondent’s representative, the Claim will stand dismissed without further order.”

On 25 October 2021 (two days before the deadline in the unless order) the claimant sent a copy of his statement to the Tribunal but did not send a copy to the Respondent, or copy the claimant into his correspondence (this failure was also a freestanding breach of Rule 92 of the Rules).

On 8 December 2021 the Respondent wrote to the Tribunal asking for confirmation that the claim had been dismissed and it was at this point the claimant first sent the Respondent the statement he was obliged to send by 27 October 2021 explaining the failure to copy in the Respondent was a mistake for which he apologised.

The employment judge took the (probably sound) view that no real harm was done and treated the claim as still ongoing; it is that decision which the Respondent appealed.

In a brief judgment the Appeal Tribunal upheld the appeal on the simple ground that the requirement of the unless order was clear and that, whether an accident or not, it had not been complied with and, therefore the judge had to dismiss the case.

Standing back this is clearly a harsh decision but I think unarguable given the wording of Rule 38(1). Employment Tribunals are (a little) less formal that a court but the lesson for claimant’s is that if they are in receipt of an unless order it is vital this this is read carefully and it is fully complied with by the dates given, as even inadvertent non-compliance – as appears to have been the case here – could results in a claim needing to be dismissed.

And what if there is a case is where a case is dismissed after an unless order is there a remedy for a claimant? This is provided for in Rule 38(2):

(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.

Rule 38(2)

So, if a claimant has had their case dismissed following a strike out order they will have the chance to ask the tribunal to set aside the judgment and allow the case to proceed if it is in the interests of the justice to do so and the claimant has the opportunity to request this be decided at a hearing. Such an application must be made within 14 days of the dismissal being sent to the claimant.

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