N Leeks v Brighton and Sussex University Hospitals NHS Trust

An Employment Tribunal must decide whether an unless order has been complied with by construing its actual terms in context and applying a qualitative test of material compliance. The question is whether the purpose of the required step has been achieved, not whether the evidence served is strong or comprehensive.

Where a party serves a witness statement meeting the limited requirements of an order, perceived gaps in the evidence do not justify dismissal for non-compliance. Nor may an unless order be used to penalise a party for a possible future attempt to adduce further evidence. Any such concern should be addressed through appropriate case-management directions. The process for deciding compliance must accord with the overriding objective, but an ET may permissibly proceed in a party’s absence where the circumstances are fair.

The claimant, acting in person and relying on health conditions requiring adjustments, brought discrimination and protected-disclosure detriment claims concerning the withdrawal of a job offer. Following earlier failures to meet directions, the London South Employment Tribunal made an unless order requiring her to exchange a witness statement by 18 November 2019.

While awaiting determination of an application to vary that order, she served a chronological, numbered document substantially repeating her particulars of claim. She described it as a statement provided “in the interim”. The ET treated this as material non-compliance, dismissed the claim, and later refused reconsideration and reinstatement.

On appeal, the central issues were whether the claimant had materially complied with the unless order and whether the ET had acted unfairly by deciding the issue in her absence at the start of the listed merits hearing.

1. Appeal allowed. The ET erred in law in finding material non-compliance with the unless order and in dismissing the claim under rule 38 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

2. Material compliance is a qualitative inquiry. The ET had to construe the order actually made, consider its procedural and legal context, and ask whether the purpose of requiring the claimant’s witness statement had been achieved. The order required only the exchange of her witness statement by a specified date. It did not require further particulars or prescribe additional substantive content.

3. The document served on 18 November 2019 was chronological, numbered and set out the claimant’s factual case. It was substantially the same as her particulars of claim, but that did not prevent it from being her witness statement. Any failure to address matters raised by the response concerned the evidential strength of her case, not compliance with the limited terms of the order.

4. The ET misread the claimant’s reference to a statement supplied “in the interim” as meaning that she was not intending to rely on it at the hearing. Properly read, she had served her statement while reserving her position pending her unresolved application to vary the order. If the ET feared that she might later add evidence, it could have directed that the served statement was to stand as her evidence in chief. Dismissal instead improperly penalised a potential future procedural abuse.

5. The fair-hearing grounds failed. The ET had delayed the hearing until 11:00 am in response to the claimant’s request and was entitled, on the information then available, to proceed in her absence. It was not required to adjourn for written submissions or make further enquiries. The later failure to identify the deciding judge in the written notification was a rule 61 irregularity, but caused no substantive injustice because it was rectified at reconsideration.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and held that the claim had been materially compliant with the unless order: [2022] EAT 153.
• London South Employment Tribunal: At a hearing on 2 December 2019, later confirmed by letter of 30 January 2020, treated the claimant as non-compliant with the unless order and dismissed the claim. Reconsideration was refused on 18 September 2020, and an application for reinstatement was refused on 1 December 2020.