K DYKES v WHITBREAD GROUP PLC

An unless order must be construed strictly. A claim may be dismissed for non-compliance only where it is beyond doubt that the party has failed to comply with the letter of the order. The order should not be read expansively against the party required to comply, by reference to its supposed purpose or spirit.

An order made under Rule 31 of the Employment Tribunals Rules of Procedure 2013 for production of documents may require production of documents in the party’s possession. It does not, without clear and competent terms, require that party to obtain documents from third-party havers. Medical records held by a GP, and reports not yet completed, were therefore outside an order limited to documents within the claimant’s possession.

The claimant brought claims for unfair dismissal, disability discrimination and sex discrimination. Following a preliminary hearing, the Employment Tribunal made an unless order requiring her to provide documents within her possession, including specified medical records and reports, and further particulars of her disability discrimination claim.

Before the deadline, her solicitors supplied the particulars and explained that she did not possess the medical material, although it had been requested from her GP and other practitioners. The Employment Judge held that she had not complied, dismissed all her claims under Rule 38(1), and later refused to revoke that dismissal following a Rule 38(2) hearing.

On appeal, the central issue was whether the unless order required the claimant to obtain documents held by third parties, rather than only to produce documents already within her possession.

1. Appeal allowed. The Employment Judge erred in treating the claimant as having failed to comply with the unless order. The dismissal judgment of 24 January 2019, including the deemed dismissal of all claims, was set aside and the claims were remitted to the Employment Tribunal.
2. The order expressly required production only of documents within the claimant’s possession. Its reference to reports “available” to her reinforced that limited scope. It did not extend to GP records held by the GP, or to reports which the claimant had commissioned but which had not yet been completed.
3. Rule 31 of the Employment Tribunals Rules of Procedure 2013 gave the Employment Judge powers equivalent to those of a sheriff for document disclosure. A competent order could be directed to the haver of documents, requiring that haver to produce documents in that haver’s possession. It could not require a person without possession of documents to obtain them from third parties. Nor could such an incompetent obligation be implied into a Rule 31 unless order through Rule 38.
4. Following McCarron v. Road Chef Motorways & Others UKEAT/0268/18, dismissal for breach of an unless order is justified only where strict construction shows non-compliance beyond doubt. The Employment Judge wrongly focused on the order’s supposed purpose or spirit. The claimant’s solicitors had made clear before the deadline that she possessed none of the identified documents, and there was no basis for finding that statement untrue.
5. It was unnecessary to determine the remaining grounds of appeal.

• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal’s dismissal judgment of 24 January 2019, and remitted all claims for further procedure.
• Employment Tribunal: Held that the claimant had failed to comply with an unless order and dismissed her claims under Rule 38(1) of the Employment Tribunals Rules of Procedure 2013. On 20 August 2019, it refused to revoke that dismissal following a Rule 38(2) hearing.