Scottish Ambulance Service v Laing

An Employment Tribunal unless order under rule 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 is a conditional judgment. If the specified direction is not complied with by the deadline, the claim or response is struck out automatically. The Tribunal has no discretion at that stage to reconsider proportionality, fair notice, or whether strike-out is an appropriate sanction.

The only question after the deadline is whether there was compliance with the order. Partial or materially inadequate compliance is insufficient. Any challenge to the making of the order must be made by review or appeal, rather than by seeking to reopen the sanction after default.

The claimant, a former employee of the Scottish Ambulance Service, brought an Employment Tribunal claim for unpaid subsistence allowance. An order required him to state, by reference to his contract and relevant policies, the basis on which allowance was due for each claimed day.

After incomplete earlier information, the Tribunal made an unless order requiring that information by 8 November 2011. The claimant's response referred generally to implied terms arising from habit and circumstance. The Tribunal later refused the employer's application to strike out, treating the response as adequate in context and considering proportionality and fair notice.

The employer appealed. The central issue was whether the Tribunal could revisit the consequence of its unless order and, if not, whether the response complied with it.

1. Appeal allowed. The Tribunal erred by treating the matter as a discretionary application to strike out. Under rule 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, an unless order is a conditional judgment. On non-compliance, the stipulated strike-out takes effect automatically without a further hearing or order.

2. The approach accords with Uyanwa-Odu and with the Court of Appeal's analysis in Marcan Shipping, [2007] 1 WLR 1864. Once the deadline passed, the Tribunal's sole task was to decide whether the order had been complied with. It could not revisit whether strike-out was proportionate, whether the claimant had given fair notice of the case, or whether documents supplied before the unless order provided sufficient context. Those considerations belong to a discretionary strike-out under rule 18(7), not to the effect of rule 13(2).

3. The response of 8 November did not comply. It did not articulate the alleged implied contractual term, identify the habit and circumstances said to establish it, or explain how the term was satisfied on each day claimed. The later letter of 15 November could not constitute timely compliance and reinforced the inadequacy of the earlier response.

4. There was no need for remission. The claim had been struck out automatically on 9 November 2011, and the EAT made a declaration to that effect. A party seeking to challenge an unless order must instead seek review of its making or appeal on a point of law.

• Employment Appeal Tribunal: Allowed the employer's appeal and declared that the claim had been struck out automatically on 9 November 2011.
• Employment Tribunal, Aberdeen: At a pre-hearing review, refused to strike out the claim. Its judgment was registered on 23 April 2012.