A Mohammed v Guy's and St Thomas' NHS Foundation Trust

An unless order which provides for dismissal of the claim upon material non-compliance operates on the whole claim, rather than only on an individual complaint. Under Rule 38, an employment tribunal must distinguish carefully between dismissal of a claim and dismissal of part of it.

Where a claim contains several complaints, an order making the whole claim automatically liable to dismissal for a failure to provide information about any complaint is generally proportionate only where there has been serious, continuing default and the tribunal has expressly considered why a more focused order would not suffice. An unless order is a contingent strike-out decision and requires careful consideration of its automatic and potentially draconian consequences.

The claimant brought claims of race and disability discrimination against her employer. Her claim form and subsequent particulars identified a number of complaints, although some required further clarification.

The Employment Tribunal made an unless order requiring further information identified in the respondent's draft list of issues. It provided that the claimant's entire claim would be dismissed automatically if she did not comply. The claimant appealed, contending that the order was disproportionate because it extended to complaints which were already substantially particularised, and to harassment, for which no further information had been sought.

The central issue was whether the tribunal erred in law by framing the unless order so that any material non-compliance would dismiss the whole claim.

1. Appeal allowed. The unless order was unambiguous. By providing that “her claim” would be dismissed, it stipulated for dismissal of the entire claim, rather than only the particular complaint to which any non-compliance related. Rule 38 distinguishes expressly between a claim and part of a claim.

2. An unless order is not merely an ordinary case-management order. It is a contingent decision that material non-compliance will automatically produce dismissal, without a further proportionality or interests-of-justice assessment. Before making an order that exposes the whole claim to dismissal, the tribunal must therefore consider with great care whether that consequence is proportionate.

3. It is not invariably unlawful to make a whole-claim unless order where information is sought about several causes of action. Ordinarily, however, dismissal should be limited to the complaint for which there is a material failure to provide information. A whole-claim order will generally be justified only by serious and continuing default indicating refusal to engage with the tribunal process, coupled with express consideration of why a more focused order is insufficient.

4. The Employment Judge did not refer to Rule 38 of the Employment Tribunal Rules 2013, the relevant authorities, or the distinction between dismissal of a claim and part of it. Nor did she assess the pleaded complaints individually. The order exposed to dismissal a harassment complaint for which no particulars had been requested, and direct race discrimination and reasonable-adjustment complaints which were substantially particularised. There was no indication that the judge considered a complaint-specific order or the proportionality of the more draconian alternative.

5. The legality of making the order fell to be assessed when it was made. Later compliance or non-compliance could not cure or retrospectively create an error of law. The matter was to return to the Employment Tribunal, with the claimant directed to finalise the limited outstanding information within 14 days so that case management could proceed promptly.

• Employment Appeal Tribunal: Allowed the claimant's appeal against the Employment Tribunal's unless order: [2023] EAT 16.
• Employment Tribunal: Made an unless order on 27 May 2020, sent on 16 June 2020, providing for dismissal of the claimant's entire claim upon non-compliance.