Old Metropolitan Borough Council v Johnson

Compliance with an unless order is assessed qualitatively. The question is whether any non-compliance is material to the purpose of the order, including whether the opposing party can know the case it must meet and receive a fair hearing. It is not enough that most requested particulars have been supplied if missing particulars remain necessary.

The terms of an unless order govern its consequences. Separate causes of action may be treated separately where the order is appropriately tailored. A tribunal must not construct an unclear claimant's case for them.

A stay in concurrent proceedings is a discretionary case-management decision. An appellate court will intervene only for legal error or perversity. A judge may assess whether proceedings said to be protective are genuinely so, without requiring an undertaking as a condition of pursuing a tribunal claim.

The claimant brought Employment Tribunal claims for constructive unfair dismissal, disability discrimination and detriment for protected disclosures. Repeated orders required a concise Scott Schedule giving particulars sufficient to identify the acts, persons, dates and legal basis of the claims.

Employment Judge Feeney held that there had been substantial compliance with a further unless order. The Council appealed. Separately, the claimant appealed Employment Judge Ross's decision to stay the Tribunal proceedings because she had commenced overlapping High Court proceedings.

The central questions were whether the claimant's particulars materially complied with the unless order, and whether the stay had been exercised lawfully.

1. The Council's appeal was allowed. The disability-discrimination and protected-disclosure detriment claims stood struck out for non-compliance with the unless order. The claimant's appeal against the stay was dismissed, subject to a temporary lifting of the stay so that she could apply promptly for relief from sanction.

2. An unless order takes effect automatically where there is non-compliance in a material respect. Material or substantial compliance is qualitative, not numerical. The inquiry is whether the particulars achieve the order's purpose: enabling the respondent and, where necessary, the tribunal to understand the case so that a fair hearing can take place.

3. Employment Judge Feeney's reasoning was inconsistent. She identified substantial deficiencies in the particulars, including uncertainty as to the alleged acts, the persons responsible, the provision, criterion or practice, and the claimed adjustments or detriments. Yet she treated the volume of material supplied as sufficient. The missing matters prevented the Council from knowing the case it had to meet. The judge should therefore have found non-compliance.

4. The wording of an unless order is critical. Separate causes of action remain legally separate, and a carefully framed order may permit only insufficiently particularised allegations to be struck out. That guidance did not alter the consequence of the order made here.

5. Relief from sanction was for a differently constituted Employment Tribunal. In deciding it, the tribunal could consider which allegations had been adequately particularised and any further steps taken to cure the deficiencies.

6. The stay decision disclosed no error of law. The judge was entitled to apply the relevant concurrent-proceedings factors, to note the overlap and risk of issue estoppel, and to evaluate the claimant's assertion that the High Court claim was merely protective. Considering the absence of a clear undertaking was evidential evaluation, not an improper requirement for an undertaking. There was no abuse of process in the Council seeking a stay after the claimant herself created overlapping proceedings.

• Employment Appeal Tribunal: Allowed the Council's appeal from Employment Judge Feeney and held that the relevant claims stood struck out for breach of the unless order. Dismissed the claimant's appeal from Employment Judge Ross's stay, save for a limited lifting of the stay to permit a prompt relief-from-sanction application.
• Employment Tribunal, Manchester: Employment Judge Feeney had found substantial compliance with an unless order requiring further particulars. Employment Judge Ross later stayed the Tribunal proceedings pending the High Court proceedings and the outcome of the Council's appeal.