Riniker v City & Islington College Corporation

An unless order takes effect on the date specified if the required act is not completed. An application to vary, revoke or extend time does not itself amount to compliance or prevent the sanction from taking effect.

The Employment Tribunal may make an unless order without a hearing, provided the rules are followed. The party affected may seek variation, revocation, an extension of time or review, but proceeds at risk if the order is not obeyed.

The Appeal Tribunal normally treats an original judgment and a later review judgment as separate decisions. Each requires its own notice of appeal. Amendment will be permitted only where the Tribunal would otherwise grant an extension of time. A refused extension cannot generally be circumvented by amending an earlier notice.

The claimant’s employment claims against the respondent were managed by the Employment Tribunal. The Tribunal ordered her to provide a schedule of loss, a list of documents and witness statements. Following continuing non-compliance, it made an unless order requiring compliance by midday on 18 June 2008, failing which the claim would be struck out.

The claimant did not comply. She applied to vary or revoke the order before the deadline, but the Tribunal recorded that the claim had been struck out. Her application for review was subsequently dismissed on 19 June 2009.

She appealed against the original judgment and sought to amend that notice to include the review judgment, despite having been refused an extension of time for appealing against the review judgment. The issues were whether the strike-out judgment was lawful and whether the later review decision could be added by amendment.

1. The appeal against the original judgment was dismissed. The Employment Tribunal was entitled under rule 13(2) of the Employment Tribunal Rules to make an unless order providing for automatic strike-out on the date of non-compliance, without a further hearing.
2. An application to vary, revoke or extend time does not constitute compliance. A party who elects to rely on such an application instead of obeying the order risks the sanction taking effect. The Tribunal nevertheless retains powers to vary or revoke the order, extend time or grant relief through the procedures available under the Rules.
3. The absence of the Employment Judge’s signature on the copy served did not invalidate the order. Rule 10(8) required the order to be signed, but did not require a signed copy to be served on the parties.
4. The unless order was sufficiently authorised and its short deadline was justified by the claimant’s continuing failure to comply with earlier orders and the need for the forthcoming case management discussion to have practical value. The Employment Judge disclosed no error of law in making or confirming it.
5. The interlocutory appeal was also dismissed. The usual practice of the Appeal Tribunal is to treat an original judgment and a review judgment as separate and to require a notice of appeal against each. Under rule 3(3) of the Employment Appeal Tribunal Rules 1993, the time limit runs from the particular judgment or order under appeal.
6. Even if amendment could in principle add a later judgment, leave should be granted only where an extension of time for appealing that judgment would have been granted. After refusal of an extension, amendment cannot be used to relitigate the same issue.

• Employment Tribunal: On 18 June 2008, recorded that the claim had been struck out for non-compliance with an unless order.
• Employment Tribunal: On 19 June 2009, dismissed the claimant’s application for review and confirmed the strike-out.
• Employment Appeal Tribunal: The Registrar refused an extension of time for appealing against the review judgment on 4 February 2010. HHJ Peter Clark dismissed the appeal against that refusal on 4 March 2010.
• Employment Appeal Tribunal: The present appeal against the original judgment and application to amend the existing notice of appeal were dismissed.