Unless Orders and the Employment Tribunal

The Employment Tribunal erred when making an unless order

In the case of Ms A Mohammed v Guy’s and St Thomas’ NHS Foundation Trust [2023] EAT 16, the Employment Appeal Tribunal decided that the tribunal erred in law when making an unless order.

What is an unless order?

An unless order is an order made by the tribunal on receipt of an application by one of the parties. The order sets out that unless the other party complies with the directions set out by the judge within a timeframe, then their claim or defence will be struck out.

In this case, the unless order required Ms Mohammed to provide information in relation to not all but some of her claims. The order set out that if the additional information was not provided, then Ms Mohammed’s entire claim would be stuck out.

Ms Mohammed was legally represented at the outset of her claim but at the time the order was made she was representing herself.

The order contained the following wording:

“UNLESS by 4pm on 8 July 2020 the claimant provides to the tribunal and to the respondent further details of her claims for discrimination, as requested and highlighted in yellow on a List of Issues prepared by the respondent and dated 20 April 2020, her claim shall be dismissed without further order.”

Ms Mohammed’s claims included race discrimination and disability discrimination. By making the order the tribunal sought to have Ms Mohammed identify and particularise her claims. 

Ms Mohammed was unable to comply with the directions contained in the unless order and so her entire claim was struck out. This included her claim for race discrimination that she had clearly identified.

The Employment Appeal Tribunal upheld Ms Mohammed’s appeal setting out that the tribunal judge had failed to direct herself to the relevant law which sets out a clear distinction between orders whereby non-compliance results in the dismissal of the full claim and those where non-compliance result in dismissal of part of the claim.

The Appeal Tribunal set out that the tribunal had also failed to consider relevant case law which highlights the care that needs to be taken before issuing an unless order that could strike out the whole claim. In Ms Mohammed’s case, she included a harassment claim in which no further information was requested as part of the order.

The Employment Appeal Tribunal held that when considering making an unless order, the tribunal should take care in considering what the consequences of non-compliance would be. Should the entire claim be struck out then the tribunal must be satisfied that it is a proportionate response to any material breach of the order.

The Employment Appeal Tribunal also held that there was nothing to show that the tribunal considered making an order to strike out only those claims where the claimant failed to comply with the directions and there was nothing to show that the tribunal had considered why such a draconian order was proportionate. 

If you are an employer or an employee and have any questions about this article or you are currently dealing with the directions of an unless order and need assistance, please get in touch on 01983 897003.

You can read the full judgement in this case HERE