Wentworth-Wood and Others v Maritime Transport Limited

An unless order must be construed from its language and procedural context. A party must be able to identify what compliance requires, and the order should not be read expansively against that party.

Under rule 38(1), the tribunal deciding whether to give notice of automatic dismissal must determine whether there has been material non-compliance; it does not decide whether the supplied particulars are ultimately true or legally sustainable. A hearing is not invariably required, but fairness may require an opportunity to respond and adequate notice if the issue is to be argued at a hearing.

Where an order is framed severally for multiple claimants, non-compliance by one does not dismiss every claimant’s proceedings. However, an order requiring compliance in several respects may dismiss that claimant’s whole claim if any material requirement is unmet.

Former employees brought holiday-pay and collective-bargaining complaints against their transferee employer. An Employment Judge made an unless order requiring each claimant to provide particulars of holiday pay, employment dates, and the contracts said to be covered by a collective agreement.

The claimants’ solicitors supplied schedules for some claimants, employment dates, and confirmation that all contracts were covered by a collective agreement. That confirmation was mistaken for one claimant. The Employment Judge gave notice under rule 38(1) that all claims had been dismissed for material non-compliance.

The claimants appealed the notice dated 10 July 2015. The issues were the construction of the unless order, the effect of the mistaken collective-agreement answer, and procedural fairness in deciding non-compliance at the listed hearing.

1. Appeal allowed in part. The Employment Judge erred in construing the unless order as requiring more than it said. At the rule 38(1) stage, the question was whether there had been material non-compliance, rather than whether the particulars were factually accurate or whether the underlying claims were legally sustainable.

2. The requirement for full particulars of the amount of holiday pay required the claimants to state the sums claimed and how they were calculated. Read with the covering letter, the schedules did so. The order did not require contractual terms, a specified statutory calculation method, legal submissions, separate pay elements, exact holiday dates, or claims for periods unsupported by payslips.

3. The answer that all contracts were covered by a collective agreement complied with the order. The fact that the answer was mistaken as to one claimant concerned its ultimate factual correctness, not compliance with the direction to identify the contracts.

4. Rule 38(1) did not require a hearing or notice under rule 54. The tribunal’s procedural duty was to act fairly under the overriding objective. It could decide the issue from the file where non-compliance was clear; where doubt arose, it should give the other party an opportunity to comment, and sufficient notice if argument was to occur at a hearing. Here, repeated requests for comments and the respondent’s agenda gave adequate notice, so the procedural-fairness ground failed.

5. The order applied severally to each claimant. Non-compliance by some could not dismiss every claimant’s proceedings. But it required each claimant’s material compliance with all three requirements; failure in any respect dismissed that claimant’s whole proceedings, not merely the complaint to which the requirement was most directly relevant. The claims of those who complied with all three requirements had not been dismissed. The parties were invited to make written submissions on the consequential order.

• Employment Appeal Tribunal: Allowed the appeal to the extent required by its construction of the unless order and held that the claims of fully compliant claimants had not been dismissed.

• Employment Tribunal: Employment Judge Laidler gave notice, by a judgment and reasons dated 10 July 2015, that all claims had been dismissed under rule 38(1). A later refusal dated 17 September 2015 of relief under rule 38(2) was not appealed.