Dr M Tattersall v Mersey and West Lancashire Teaching Hospitals NHS Trust (formerly Southport & Ormskirk Hospital NHS Trust)

Under Rule 38(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the question on issuing a confirmation notice is whether an unless order has been complied with by the specified date. A party may contend that imperfect performance amounted to substantive compliance. It cannot accept non-compliance yet contend that the default was immaterial because a fair trial remains possible.

Whether the order should have been made, and whether justice requires relief from its consequences, are separate questions. They arise respectively at the making of the order and on an application under Rule 38(2). The Tribunal may decide the compliance issue without further representations where the material plainly establishes non-compliance, consistently with the overriding objective.

The appellant brought whistleblowing and disability-discrimination claims arising from the withdrawal of a conditional offer of direct employment. An Employment Judge made an unless order requiring disclosure of GP records by 11 December 2020, failing which all claims would be dismissed.

After the respondent stated that no further records had been supplied, the Regional Employment Judge issued a Rule 38(1) confirmation notice on 15 January 2021. The appellant's later Rule 38(2) application to set aside the notice was refused, but that refusal was not appealed. This appeal challenged only the confirmation notice, principally on materiality, procedural fairness, prior written material, and reasonable-adjustment grounds.

1. Appeal dismissed. The Regional Employment Judge was correct to issue the confirmation notice. The appellant had supplied no GP records pursuant to the unless order. This was total non-compliance.

2. Rule 38 creates three distinct stages: making an unless order; determining whether it has been complied with and confirming the consequence of non-compliance; and deciding whether to set the order aside in the interests of justice. At the second stage, the order is a given. The Tribunal cannot reconsider whether it should have been made: Uwhubetine and Minnoch.

3. The requirement for material non-compliance accommodates a case of imperfect performance, where the Tribunal must decide whether the party has complied in substance. It does not permit a party who has not complied to argue that the default does not matter because it will not impair a fair trial. Considerations such as the seriousness of default, prejudice and the continued possibility of a fair trial belong to a Rule 38(2) application, consistently with Thind.

4. There is no mandatory hearing or representation process before a confirmation notice. The Tribunal must act fairly under the overriding objective. Where correspondence and the file clearly establish non-compliance, it may issue notice without further reference to the parties. Here the appellant had made written representations, did not request a hearing, and did not dispute that no further records had been provided. The process was fair.

5. The earlier witness statement and skeleton argument did not bear on compliance with the later unless order. No hearing was held before the Regional Employment Judge, and the appellant's ability to make written representations, together with the steps taken in the proceedings, meant that his rights under the Equality Act 2010 and article 6 of the European Convention on Human Rights were respected.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 24.
• Employment Tribunal: On 15 January 2021, following non-compliance with an unless order, the Tribunal issued a Rule 38(1) notice confirming dismissal of the claims.
• Employment Tribunal: On 5 April 2022, the appellant's Rule 38(2) application to set aside the confirmation notice was refused. That decision was not appealed.