Daniel Tanase v Barchester Healthcare Limited

An Employment Tribunal may dismiss a claim automatically for non-compliance only where it has made an unless order under Rule 38. The order must be expressed as a conditional judgment. A case management order under Rule 29 does not become an unless order merely because non-compliance later prompts a strike-out warning.

Where the Tribunal proceeds under Rule 37, a party who requests the oral hearing provided by Rule 37(2) must be afforded that procedural step before strike-out. Dismissal without it is procedurally incompetent.

The Employment Tribunal at Aberdeen dismissed Mr Tanase’s claims for unfair dismissal and race discrimination on 10 November 2022. It stated that he had not complied with an order dated 3 October 2022, described in the dismissal judgment as an unless order.

Mr Tanase appealed. The appeal was determined on written submissions. The central issues were whether the 3 October order was an unless order under Rule 38 and whether the Tribunal could dismiss the claims after he had requested an oral hearing in response to a Rule 37 strike-out warning.

1. Appeal allowed. The Employment Tribunal’s dismissal judgment was set aside and the claims were remitted to proceed as accords.

2. The 3 October 2022 order was not an unless order under Rule 38. It was expressed on its face as a Rule 29 case management order. An unless order would have been a conditional judgment, as recognised in Scottish Ambulance Service v Laing EATS 0038/12.

3. The Tribunal’s own Rule 37 strike-out warning confirmed that the earlier order was not treated as a Rule 38 unless order. Had it been such an order, a Rule 37 warning would not have been required.

4. The appellant requested an oral hearing within the time stated in the warning. Rule 37(2) entitled him to make representations at that hearing. No hearing was fixed, yet the claims were dismissed. That omitted procedural step independently made the dismissal procedurally incompetent.

5. The EAT further observed that paragraphs (c) and (d) of the 3 October order required acts by the respondent’s solicitors or a potential witness. Those matters were outside the appellant’s control and could not competently be directed to him. Although that order was not itself under appeal, the Tribunal should reconsider its terms after remit.

• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal’s dismissal judgment, and remitted the unfair-dismissal and race-discrimination claims.
• Employment Tribunal (Aberdeen): On 10 November 2022, dismissed the claims for alleged non-compliance with the order of 3 October 2022.