Ijomah v Nottinghamshire Healthcare NHS Foundation Trust

An unless order concerning particulars must be construed by its ordinary wording. Guidance in a case-management summary does not add obligations where the order only requires completion of a specified template.

Material compliance is a qualitative question. The particulars must fairly enable the opposing party to know the case to answer or the tribunal to understand what is asserted. Where an order concerns several distinct complaints, material non-compliance concerning one complaint does not strike out others which are adequately particularised and capable of fair litigation.

Particulars of alleged written protected disclosures must be assessed case by case, by reading the answer given with any document supplied. A tribunal may not assume from generic wording or the length of an attached document that every disclosure is materially deficient.

The claimant, a consultant forensic psychiatrist, brought claims for protected-disclosure detriment, dismissal for making protected disclosures, ordinary unfair dismissal and breach of contract. Following earlier case-management directions requiring a completed schedule of particulars, an Employment Judge made an unless order requiring compliance with specified paragraphs of the earlier order.

The Employment Tribunal held that the claimant had materially failed to comply and that all relevant claims stood struck out. It later supplemented its reasons. The claimant appealed only that compliance decision, not the making of the unless order, refusal of reconsideration, or refusal of relief from sanctions.

The central issues were the proper construction of the unless order, whether the particulars materially complied with it, and whether non-compliance relating to one allegation could strike out separate complaints.

1. Appeal allowed in part. The Employment Tribunal erred in striking out all protected-disclosure detriment claims and the dismissal claim under section 103A. The matter was remitted for fresh consideration by a judge other than EJ Moore.

2. The unless order required compliance with paragraphs 1.1 and 1.2 of the earlier order, which in turn required completion of Appendix One. Its construction was therefore governed by the Appendix and the ordinary meaning of the order. The case-management summary was helpful background, but was not incorporated into the order and could not impose an additional requirement of exact wording or identification of passages within attached documents. This accorded with the construction principle in Wentworth-Wood.

3. Material compliance is qualitative. The question is whether the particulars fairly enable the respondent to know the case it must meet, or the tribunal to understand what is asserted. The order did not permit a penal outcome by which inadequate particulars for one distinct complaint automatically eliminated other properly pleaded and litigable complaints.

4. Each alleged detriment and each alleged contractual breach was a distinct claim capable of succeeding or failing independently. A materially deficient alleged disclosure could not be relied upon as a component of a detriment claim. However, a detriment claim relying on several disclosures should survive if at least one was adequately particularised and no other essential element was deficient.

5. The Tribunal had wrongly treated all written disclosures as deficient without considering, disclosure by disclosure, the answer to the template and the document supplied together. It was entitled to find material non-compliance for disclosures 7, 11, 14, 16, 17, 18, 20 and 21, and for detriment claim 3. The remaining identified disclosures required fresh consideration. The section 103A claim and the remaining detriment claims depended on that exercise.

6. The breach-of-contract claims were properly struck out. No annual-leave particulars were supplied. The study-leave and sick-leave entries merely repeated broad topics and gave the respondent no meaningful information about the alleged breaches.

• Employment Appeal Tribunal: Appeal allowed in part. The strike-out decision was upheld for specified disclosures, detriment claim 3 and all breach-of-contract claims; the remaining compliance issues and the section 103A claim were remitted to a different Employment Judge.
• Employment Tribunal: An unless order was made following case-management directions. EJ Moore held that there had been material non-compliance and that the protected-disclosure, section 103A and breach-of-contract claims stood struck out. Her reconsideration decision supplemented the reasons.