Amey Services Ltd v Cunning & Ors & Anor

An Employment Tribunal deciding whether an unless order has been complied with must decide whether there has been material, rather than exact or quantitative, compliance. In a multiple claim, that assessment must be made for each claimant.

For an order requiring further information, compliance is assessed qualitatively by its purpose: whether the information enables the other party to know the case it must meet and prepare its response. Errors, disputed calculations, legal unsustainability and evidential gaps do not ordinarily establish non-compliance where the particulars state the case and identify any missing information. An unclear unless order cannot be read expansively against the party required to comply with it.

The claimants, highway maintenance operatives, brought consolidated claims for holiday-pay underpayments. They alleged that holiday pay had been calculated by basic pay rather than normal remuneration. Some claimants had later transferred to other employers.

After several orders for further information, the Employment Tribunal made an unless order requiring compliance with earlier directions by 5 May 2017. The claimants supplied individual further-information statements and calculation schedules. Employment Judge Smail held that they had materially complied, so their claims had not been struck out.

Amey Services Ltd and Kier Highways Ltd appealed. They contended that the Tribunal had adopted an impermissibly global approach, overlooked deficiencies in individual claims, and given inadequate reasons. The central issue was whether the information supplied amounted to material compliance with the unless order.

1. Appeals dismissed. The Employment Judge made no error of law in holding that the claims had not been automatically struck out for breach of the unless order.

2. Material compliance is a qualitative assessment directed to the purpose of the order. In the context of further particulars, the question is whether the information enables the respondent to know the case it must meet and to prepare a response. It does not require precision or error-free calculations. This approach followed Johnson v Oldham Metropolitan Borough Council and was consistent with Hylton v Royal Mail Group Ltd.

3. The Employment Judge had not applied a global test. He considered the individual statements and schedules, which used a uniform format and addressed the categories required by the earlier orders. The eight claimants who had already provided the required information did not have to resubmit it. The unrepresented claimants had also supplied materially compliant information while represented.

4. The unless order was itself broadly and unclearly drafted, incorporating earlier orders with differing language. Consistently with Wentworth-Wood & Others v Maritime Transport Ltd, it could not be read expansively against the claimants. They could not be required to provide information unavailable to them; their identification of gaps in records enabled the respondents to understand the evidential position.

5. The respondents' detailed complaints concerned the factual accuracy, legal merits, calculation methodology, categorisation of leave, and alleged inconsistencies in the schedules. Those matters could be addressed through counter-schedules or at the substantive hearing. They did not show material non-compliance. The claims could therefore proceed to a full hearing before the Employment Tribunal.

• Employment Appeal Tribunal: dismissed the appeals and upheld the conclusion that the claims had not been struck out.
• Employment Tribunal, Watford: Employment Judge Smail held at a preliminary hearing that the claimants had materially complied with the unless order. Judgment and Reasons were sent to the parties on 7 November 2017.