D Chumbu v The Disabilities Trust

Relief from the automatic dismissal caused by an unless order depends on the interests of justice. There is no mandatory checklist, but the tribunal must consider relevant circumstances, avoid irrelevant matters, and give reasons showing that the serious sanction of strike-out was just and proportionate.

A deliberate and persistent failure to comply with procedural orders may justify refusal of relief even where a fair trial could still be possible. An unpaid costs award should only rarely be made the subject of an unless order. Doing so can improperly make payment a condition of access to justice, bypassing the safeguards for a deposit order under rule 39 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

The claimant brought Employment Tribunal claims arising from his employment, including unfair dismissal, whistleblowing detriment and discrimination. After an earlier trial listing was adjourned because the claimant had not provided a compliant witness statement, the Tribunal made a costs award of £1,875 and ordered small deposits in respect of some claims.

A later unless order required the claimant, by 30 December 2021, both to serve an updated witness statement and pay the costs award. His claims were automatically dismissed when he did neither. The Croydon Employment Tribunal refused relief from that sanction. The claimant appealed, contending that the Tribunal had failed properly to apply the interests-of-justice test and had wrongly made payment of costs a condition of continuing the claims.

1. Appeal dismissed. The Employment Appeal Tribunal held that the refusal of relief from sanction had to stand because the claimant's failure to serve the required witness statement independently justified that outcome.

2. Under rule 38(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the question is whether setting aside the automatic dismissal is in the interests of justice. No formula or checklist is required. The Tribunal must, however, take account of relevant circumstances, avoid irrelevant ones, and give sufficient reasons to show that the drastic sanction was just and proportionate.

3. On the witness-statement requirement, the Tribunal had not erred. The procedural history showed repeated non-compliance, including the earlier failure that caused an adjournment of the merits hearing. It was entitled to reject the medical explanation as establishing an inability to prepare a statement over the available period. It permissibly concluded that the claimant had chosen not to begin the task in good time and then used the compliance period to challenge the unless order rather than comply with it. Those conclusions were not perverse and demonstrated a fair assessment of the interests of justice.

4. The Tribunal did err in making payment of the £1,875 costs award a condition of continuing the claim. Although rule 38 does not exclude an unless order concerning costs, such use will rarely accord with the overriding objective. It effectively converted a compensatory costs award into a deposit order without the ability-to-pay inquiry, cap and other safeguards required by rule 39. It also conditioned pursuit of claims with reasonable prospects, or claims already subject to paid deposits, on payment of a much larger sum within a short period.

5. The error was aggravated by the Tribunal's failure to engage with the claimant's asserted material change in means. His inability to work during the vacation and use of his maintenance loan for accommodation were relevant to his ability to pay. Refusal of relief on that aspect was perverse. Nevertheless, the Tribunal had addressed the two limbs of the unless order separately, and its sound reasoning on the witness statement was unaffected. No remittal or setting aside of the overall refusal was therefore warranted.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal's error concerning the costs-payment limb did not undermine its independent refusal of relief for failure to serve a witness statement.
• Employment Tribunal, Croydon: by letter of 25 May 2022, refused relief from the automatic dismissal arising from the unless order of 13 December 2021.