A Chauhan v University of Leicester

An unless order must be construed by its ordinary wording in its legal and procedural context. The party subject to it must be able to ascertain what compliance requires, and the order must not be read expansively against that party.

Apparent generality may nevertheless be cured by the litigation history. An order requiring further and better particulars was sufficiently certain where that context showed that the claimant had to answer an earlier, identified request for particulars. An order providing that the claim will be struck out ordinarily concerns the whole claim, rather than an unspecified part of it.

The claimant, a cleaner employed by the respondent, brought a self-represented claim for race discrimination. His ET1 did not clearly identify the allegations or their asserted connection with race. The respondent requested further information in a grid. After extended case-management steps, an unless order required further and better particulars by 25 January 2021, failing which the claim would be struck out.

The claimant sent extensive material by the deadline. The Employment Judge held that it did not substantially comply, so the claim was automatically struck out, and refused relief from sanctions. The claimant appealed, contending that the order was unclear as to both compliance and consequence, and that at least one complaint had been sufficiently particularised.

1. Appeal dismissed. There was no error of law in the Employment Judge’s construction of the unless order or in the refusal of relief from sanctions.

2. An unless order must be read according to its ordinary language, informed by its legal and procedural context. Although the words requiring further and better particulars were, viewed alone, probably too vague to operate effectively, the preceding history made their meaning clear. The claimant had sought to respond to the respondent’s identified grid request, and a reasonable litigant in his position would understand that compliance required supplying the requested details.

3. The order’s reference to the claim plainly meant the entire claim presented in the ET1. Rule 38 distinguishes an unless order concerning a claim from one concerning part of a claim. There was no ambiguity in the stated consequence of non-compliance.

4. The challenge to the refusal of relief from sanctions depended on identifying a distinct, adequately particularised complaint that could proceed. The Employment Judge had found that even the claimant’s best candidate, concerning the allocation of work at the botanical garden, was not materially compliant with the requirement for particulars. The judge had also considered the claimant’s efforts, difficulties and the procedural history. The appellate court could not substitute its own case-management preference for the Employment Judge’s lawful discretionary decision.

• Employment Appeal Tribunal: Appeal dismissed: the Employment Judge’s strike-out and refusal of relief from sanctions were upheld.
• Employment Tribunal: Employment Judge Adkinson, judgment sent on 23 August 2021, held that the claimant had not complied with the unless order and refused relief from sanctions.