Uwhubetine & Anor v NHS Commission Board England & Ors

Under Rule 38, the making of an unless order, the determination whether it has been materially complied with, and an application to set it aside are distinct decisions. At the compliance stage, the Tribunal must construe and apply the order as made. It cannot revisit its appropriateness or grant relief from its consequences.

Material compliance is a qualitative question. Where particulars are required, the issue is whether they enable the respondent to know the case to meet, not whether the claim is legally or factually meritorious. An automatically operative unless order takes effect on material non-compliance. Written notice confirms that result and triggers the right to seek relief.

The Claimants, GP partners, brought claims of race discrimination, harassment, victimisation and whistleblowing detriment against the NHS Commissioning Board, a clinical commissioning group and two individuals.

The Employment Tribunal ordered a Scott Schedule identifying each alleged act, its date, the respondent liable and, for the corporate respondents, the individual alleged perpetrator. A subsequent unless order required compliance by 28 March 2018, failing which the claims would be struck out without further notice.

At a preliminary hearing, the Tribunal held that the Scott Schedule materially failed to comply and that the claims had automatically been struck out on expiry of the deadline. The Claimants appealed. During the EAT hearing, they withdrew the appeal against the Second Respondent. The central issue was whether the Tribunal had lawfully determined material non-compliance and given effect to the unless order.

1. Appeal dismissed. The appeal against the Second Respondent was dismissed upon withdrawal. The appeals against the First, Third and Fourth Respondents were dismissed.

2. Rule 38 creates separate decision points: making an unless order; deciding whether it has been complied with and has therefore automatically dismissed a claim or response; and deciding an application to set it aside in the interests of justice. At the second stage, the Tribunal must determine compliance with the order’s terms. It cannot revisit whether the order should have been made, alter its scope, or grant relief from sanctions.

3. Although the earlier decision to defer the compliance issue until after jurisdictional matters was a wrong turn, the Tribunal correctly treated compliance as the first issue at the June hearing. Rule 38 imposed no requirement for advance notice that the issue might be determined at that hearing. The Claimants’ representative had a fair opportunity to make submissions. The subsequent written judgment properly confirmed the automatic dismissal and started the time for a Rule 38(2) application.

4. The test was whether there had been material non-compliance, assessed qualitatively. The relevant question was whether the Scott Schedule and permissible cross-references enabled the Respondents to know the case to answer. The Tribunal was entitled to find material deficiencies, including failures adequately to identify individual agents, incidents, dates and alleged conduct.

5. The unless order naturally required compliance with all requirements of the earlier Scott Schedule direction. Its consequence was that all claims against all Respondents stood struck out if there was material non-compliance. That result was wide and draconian, but neither the Tribunal at the compliance stage nor the EAT could rewrite an unappealed order. Any later application for relief from sanctions, including an application made out of time, was for the Employment Tribunal.

• Employment Appeal Tribunal: appeal dismissed: [2019] UKEAT 0264_18_2304.
• Employment Tribunal, Sheffield: at a preliminary hearing on 12 June 2018, the Tribunal held that the Claimants had materially failed to comply with the unless order and that their claims had automatically been struck out on 29 March 2018.