A Minnoch & Ors v InterserveFM Ltd & Ors

An employment tribunal deciding whether to issue notice that an unless order has taken effect must decide whether there has been material compliance. That is a qualitative, not quantitative, inquiry directed to the order’s purpose. The tribunal must construe the order in context, adopt a facilitative rather than punitive approach, and resolve genuine ambiguity in favour of the party required to comply.

It must not enlarge an ambiguous order by imposing unexpressed formal or evidential requirements. Particular care is required when framing an unless order because material non-compliance has the draconian consequence of automatic dismissal, subject to relief in the interests of justice.

Thirty employees appealed against a notice issued by an employment judge stating that their claims had been struck out for non-compliance with an unless order. The underlying claims alleged that the first respondent had withheld strike-day pay and had failed to identify deductions in payslips.

The unless order required each claimant to serve the documents referred to in an earlier case-management order. Before the deadline, the claimants served spreadsheets concerning losses and union payments, followed shortly by a list of documents. The employment judge held that the material did not comply and that all claims had automatically been struck out.

The appeal concerned the stage-two question under rule 38(1) of the Employment Tribunal Rules 2013: whether there had been material non-compliance with the unless order.

1. Appeal allowed. All three grounds succeeded. The employment judge erred in issuing notice that the claims had been struck out without directing himself to the governing question: whether there had been material non-compliance with the unless order.

2. At the notice stage under rule 38(1) of the Employment Tribunal Rules 2013, compliance is assessed qualitatively and by reference to the order’s purpose. The approach must be facilitative, rather than punitive. An ambiguity in the order must be resolved in favour of the party required to comply. An order must not be construed expansively against that party.

3. The original order was ambiguous as to whether it required separate schedules for every claimant or one schedule containing each claimant’s loss. The judge gave excessive weight to form rather than substance by treating a consolidated spreadsheet and its presentation as non-compliant. In a modest group claim for a few days’ pay, the format was of little significance if the relevant figures were supplied.

4. The order required union payments to be identified. It did not require the claimants to state ex gratia sums paid by the respondent. The respondent already knew those sums and had identified them in its response. Nor did the judge assess which relevant documents, held by each claimant, had not been disclosed. His approach was punitive and rested on an unjustified conclusion that a fair trial required a substantial adjournment.

5. The EAT could not conclude that material compliance was the only possible answer for every claimant. The issue was remitted, if necessary, to a different employment judge. Any claimant found materially non-compliant could seek relief from sanction under rule 38(2), and the parties were to act proportionately and consistently with the overriding objective.

• Employment Appeal Tribunal: Allowed the appeal from the notice of Employment Judge J S Burns dated 19 December 2020, which had stated that all claims were struck out for breach of an unless order. The material-compliance issue was remitted to a different employment judge if necessary.