Bauhaus Educational Services Limited v Oluwaseyi Elemide

At the notice stage of an unless order, an Employment Tribunal must construe the order and decide whether there has been material compliance. It must not revisit the order or determine culpability, prejudice, or the interests of justice. Those matters arise only on an application to set aside a dismissal.

Where an order clearly requires service of a witness statement on the other party, lodging it only with the Tribunal does not comply. The claim is dismissed without further order upon non-compliance. The Tribunal must then give notice under rule 38(1); the period for applying to set aside the dismissal under rule 38(2) begins only when that notice is sent.

The claimant brought claims including age and race discrimination, wrongful dismissal and unlawful deductions from wages. An Employment Judge made an unless order requiring him to serve his witness statement on the respondent’s representative by 27 October 2021, failing which the claim would stand dismissed without further order.

The claimant sent the statement to the Tribunal before the deadline but did not send or copy it to the respondent. On 10 December 2021, the Employment Judge ruled that this complied with the order and directed that the listed final hearing proceed. The respondent appealed.

The central issue was whether lodging a witness statement with the Tribunal amounted to compliance with an unless order expressly requiring service on the opposing representative, and what consequential order should follow.

1. Appeal allowed. The Employment Judge erred in law in deciding that the claimant had complied with the unless order. Its language was clear: it required service of the witness statement on the respondent’s representative by the specified date. The claimant had not taken that step.

2. The second stage under rule 38 concerns whether there has been compliance with the unless order. It requires construction of the order and determination of the relevant facts. Although material compliance is a qualitative and facilitative inquiry, a simple and unambiguous order requiring one identified act leaves little room for an evaluative assessment.

3. Culpability for non-compliance, its practical consequences, and the interests of justice do not fall to be considered at that stage. They are matters for the separate application under rule 38(2) to set aside the dismissal. The claimant’s status as a litigant in person could not turn service on the Tribunal into service on the respondent.

4. The claimant also failed to comply with rule 92, which required him to copy the respondent when communicating the witness statement to the Tribunal. Had he copied the respondent into that email, he would effectively have complied with the unless order.

5. The claim therefore stood dismissed when the unless order expired. The EAT declared the non-compliance and directed the Tribunal to issue the written rule 38(1) notice. The EAT did not determine any application for relief from sanction. The 14-day period for an application under rule 38(2) will begin only when the Tribunal sends that notice.

• Employment Appeal Tribunal: Allowed the respondent’s appeal in [2023] EAT 161, declared that the claimant had not complied with the unless order, and directed the Employment Tribunal to give notice under rule 38(1).
• Employment Tribunal: On 10 December 2021, Employment Judge Bedeau held that the claimant’s sending of the witness statement to the Tribunal complied with the unless order and directed that the case proceed. That ruling was reversed.