McCarron v Road Chef Motorways Ltd & Ors

An unless order must be construed strictly. A claim may be treated as dismissed under rule 38 only where the party has plainly failed to comply with what the order actually requires.

A direction to disclose any medical or similar evidence relied on ordinarily fixes a deadline for evidence which the party wishes to use. It does not, without clear words, compel the party to obtain and provide such evidence. The order must not be construed expansively against the party subject to its automatic sanction.

The Claimant brought claims for unfair dismissal and disability discrimination, alleging dyslexia as her disability. The Employment Tribunal listed a preliminary hearing to determine whether she was disabled in law and directed disclosure of any medical or similar evidence on which she relied, together with any further disability impact statement.

After an extension, the Tribunal made an unless order in materially the same terms. The Claimant supplied a revised impact statement but no medical or similar evidence. The Tribunal then notified the parties under rule 38 that the disability discrimination claims stood dismissed.

The Claimant appealed against that determination. The central issue was whether the unless order required her to obtain and disclose medical or similar evidence, or merely required disclosure by the deadline of evidence on which she wished to rely.

1. Appeal allowed. The Employment Tribunal erred in deciding that the disability discrimination claims stood dismissed for non-compliance with the unless order.
2. Rule 38 of the Employment Tribunals Rules of Procedure 2013 may involve a decision to make an unless order, a subsequent decision whether non-compliance has occurred so that the order has taken effect, and an application to set aside a resulting dismissal. This appeal concerned the second decision, not the original decision to make the order.
3. Unless orders are draconian and must be clear and unambiguous. A claim may be treated as dismissed only where strict construction establishes non-compliance with the letter of the order, rather than merely its perceived spirit.
4. Read in its procedural context, the requirement to disclose any medical evidence or similar evidence relied on did not oblige the Claimant to obtain such evidence. It required disclosure by the stated date if she wished to rely on it. Her failure to produce it therefore did not breach the order, although it might have prevented later reliance on it and left her case weak at a preliminary hearing.
5. The EAT could fairly determine that point despite its not having been distinctly articulated before the full appeal hearing. It was fundamental, arose from the order’s wording, and the Respondents had a fair opportunity to address it.
6. In the alternative, the Claimant’s email explaining why she could not obtain evidence should at least have led the Tribunal to notify her that she could apply within 14 days under rule 38(2) to set aside any dismissal. That alternative conclusion was not necessary to the result.
7. The matter was remitted. The Tribunal must proceed on the footing that the unless order did not take effect and that the disability discrimination claims remain live. Further case management, including any preliminary hearing, fresh evidence directions, or consideration of strike-out, was for the Tribunal.

• Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal’s rule 38 notification that the disability discrimination claims stood dismissed was set aside in effect, and the matter was remitted.
• Employment Tribunal: An unless order was made under rule 38 of the Employment Tribunals Rules of Procedure 2013. The Tribunal later notified the parties that the disability discrimination claims had been dismissed for non-compliance.