Richards v Manpower Services Ltd

Unless orders operate automatically when their terms are not complied with.

Partial compliance with an otherwise clear unless order does not avert automatic strike out.

A tribunal retains power to consider whether compliance occurred and to grant relief from the sanction, but relief must be sought by application to the tribunal.

The appellant appealed from a decision of Employment Judge Hutchinson dated 20 November 2012.

The central issue was whether an "Unless Order" made after case management required disclosure and provided for automatic strike out on non-compliance.

The respondent delivered disclosure late and only in part within the deadline.

The Employment Judge refused the claimant's application to strike out the respondent's responses on paper.

The appeal asked whether the sanction in the Unless Order had taken effect and whether the Employment Judge had in effect granted relief against the sanction without procedure.

(1) The appeal is allowed to the extent of a declaration that the sanction in the Unless Order took effect because the order was not complied with. (Outcome: declaration.) (See paras [17]–[22].)

(2) A properly drafted Unless Order has automatic effect in accordance with its terms. Partial compliance will not suffice to prevent automatic strike out. The court applied the reasoning in [2012] UKEAT/0038/12 (Scottish Ambulance Service v Laing) and related authorities. (See para [17].)

(3) Where compliance is disputed the Employment Tribunal can determine that issue. The tribunal also has power to grant relief from the sanction. The mechanism may be exercised under the Rules, including by reference to rule 10(1)(m). The court accepted the existence of a power to grant relief but emphasised that such relief requires an application and appropriate opportunity for parties to make submissions. (See paras [18], [21].)

(4) The Employment Judge's reasons could not be read as granting relief against sanction. He addressed whether to make an order striking out rather than whether to grant relief. No application for relief had been made and the claimant had not had an opportunity to respond to such an application. (See para [21].)

(5) The Employment Tribunal Rules and relevant statutory power were applied. The power to order disclosure derives from Employment Tribunals Act 1996 s.7(2)(e) and is reflected in rule 10(2)(d) of the Employment Tribunal Rules of Procedure. The power to make an Unless Order is in rule 13(2). (See para [16].)

(6) Practical consequence and order: the respondent's failure to comply activated the Unless Order. The appeal is allowed to that extent and a declaration is made that the responses were struck out. The respondent remains at liberty to apply to the Employment Tribunal for relief from sanction. (See paras [22]–[23].)

• Employment Appeal Tribunal: appeal allowed in part; declaration that the Unless Order sanction took effect. (Hearing: 3 April 2013.)
• Employment Tribunal: Employment Judge Hutchinson, decision on paper dated 20 November 2012 refusing the claimant's application to strike out the respondent's responses.