Hamdoun v London General Transport Services Ltd & Anor

An unless order takes effect automatically only when there has been substantial non-compliance with the precise terms of that order. A party cannot lose its claim for failing to comply with the spirit, purpose or a separate requirement of an earlier case-management order.

Where an Employment Tribunal has wrongly treated an unless order as breached, the Appeal Tribunal will not substitute a discretionary strike-out unless it is clear that no other lawful outcome was possible. The strictness of the automatic sanction does not prevent a later, properly notified application for strike-out based on persistent non-compliance.

The Claimant appealed against an Employment Judge's notification that his claim had stood dismissed under an unless order.

The original case-management order contained separate requirements for disclosure by a list of documents and for subsequent inspection. The unless order required compliance with the disclosure requirement only. The Claimant complied with that requirement, but did not provide inspection of photographic and video material.

The Employment Judge nevertheless treated the unless order as breached and dismissed the claim. The Respondents contended that the result should be upheld because a discretionary strike-out would inevitably have followed. They also sought appeal costs under Employment Appeal Tribunal Rules 1993, Rule 34A(1).

1. Appeal allowed. The dismissal notification was set aside and the claim was to proceed before the Employment Tribunal.

2. An unless order must state clearly the action required and the automatic consequence of non-compliance. Its effect depends on substantial compliance with its actual terms, assessed qualitatively. Here the order required compliance with paragraph B2, concerning disclosure by list, rather than paragraph B3, concerning inspection. The Claimant had complied with B2. There was therefore no breach capable of triggering automatic dismissal.

3. Although the Claimant's continuing failure to permit inspection was unexplained and seriously impeded the fair preparation of the case, it could not be treated as a failure to comply with the unless order. A claim cannot automatically terminate for failure to observe the spirit or intention of an order. Those matters require a separately considered strike-out application, with proper prior notice to the affected party.

4. The Tribunal declined to uphold the result as plainly and unarguably inevitable. In light of Jafri v Lincoln College [2014] EWCA Civ 449, substitution by the Appeal Tribunal is relatively rare. It could not be certain that an Employment Judge would necessarily characterise the default as unconscionable and contumelious, or exercise the discretionary power to strike out.

5. The Respondents' appeal-costs application failed. Rule 34A(1) concerned proceedings before the Appeal Tribunal, and the conditions for costs were not established. In any event, the Tribunal would not have exercised its discretion to award costs. The decision did not prevent a future Employment Tribunal application for strike-out, costs, or both, founded on persistent non-compliance.

• Employment Appeal Tribunal: Allowed the Claimant's appeal and set aside the Employment Judge's dismissal notification: [2015] UKEAT 0414_14_0605.
• Employment Tribunal, London (South): Employment Judge Elliott recorded on 11 February 2014 that the claim stood dismissed with effect from 22 November 2013 for alleged non-compliance with an unless order.