Johnson v Oldham Metropolitan Borough Council

Compliance with an unless order is sufficient only where it is material, assessed qualitatively by reference to the order’s purpose. Where particulars are ordered so that the opposing party can know the case to meet, apparent compliance is inadequate if material omissions still prevent a fair trial. A numerical assessment of how many requested particulars have been supplied is erroneous.

The precise terms of an unless order govern its consequences. Separate causes of action need not necessarily all be lost through non-compliance affecting only some allegations. A tribunal may clarify a litigant’s case, but must not formulate the case for that litigant.

The Council appealed against Employment Judge Feeney’s conclusion that the Claimant had substantially complied with an unless order requiring a short Scott Schedule containing specified particulars of her disability discrimination and protected-disclosure claims. The order provided for those claims to be dismissed automatically if the required particulars were not supplied.

The Claimant separately appealed against Employment Judge Ross’s stay of the Employment Tribunal proceedings pending her High Court proceedings, which concerned substantially overlapping facts. She said that the High Court claim was protective and that she could not afford to pursue it.

The central issues were whether the particulars materially complied with the unless order, and whether the stay involved an erroneous exercise of discretion.

1. The Council’s appeal was allowed. The Employment Judge’s conclusion of substantial compliance could not stand. Her reasoning identified substantial deficiencies in the particulars, including failures to identify the conduct, actors, dates and essential components of the statutory claims, yet nevertheless treated the order as substantially complied with. That was internally inconsistent.

2. The proper question was whether there had been material compliance. In this context, that meant whether the particulars enabled the Council to know sufficiently the case it had to meet, and enabled a fair hearing. Compliance is therefore qualitative, not quantitative. Supplying many requested matters does not suffice if omitted matters remain necessary to a fair trial.

3. The Employment Judge had also impermissibly attempted to infer and formulate aspects of the Claimant’s reasonable-adjustments case. A judge may clarify what a litigant means, but an adversarial tribunal must determine the case advanced by the litigant, not construct a case on that person’s behalf.

4. The disability-discrimination and public-interest-disclosure detriment claims consequently stood struck out for non-compliance. Relief from sanction remained available for the Tribunal to consider on its merits. The Tribunal could consider which allegations had been adequately particularised, and whether the Claimant had remedied the identified deficiencies. The application was to be heard by a judge other than Employment Judge Feeney.

5. The Claimant’s appeal against the stay was dismissed. Employment Judge Ross had correctly directed herself, considered the Claimant’s assertion that the High Court proceedings were protective, and was entitled to take account of the absence of a clear commitment not to pursue them. That was an evidential evaluation, not an impermissible requirement for an undertaking. The overlap between the proceedings also created a real risk of issue estoppel.

6. The stay was lifted temporarily to permit a promptly made application for relief from sanction and ancillary matters. It would resume after that application was decided.

• Employment Appeal Tribunal: The Council’s appeal against Employment Judge Feeney was allowed. The Claimant’s appeal against Employment Judge Ross was dismissed subject to a temporary lifting of the stay.

• Employment Tribunal, Manchester: Employment Judge Feeney held that there had been substantial compliance with the unless order. Employment Judge Ross later stayed the Tribunal proceedings pending High Court proceedings and the outcome of the Council’s appeal.