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

The Employment Appeal Tribunal dismissed the appellant's appeal against a confirmation notice issued under Rule 38(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The central legal principle was that the scope of a Rule 38(1) decision is limited to whether an unless order has been complied with; it is not the stage at which the tribunal may decide that non-compliance is immaterial. The tribunal may accept arguments that an order has been complied with in substance, but Rule 38(1) does not permit a finding that there has been non-compliance which is nevertheless immaterial to the fairness of the trial.

Applying that principle, the Employment Appeal Tribunal held that there had been total non-compliance with the unless order requiring production of GP records and that the regional employment judge was entitled to issue the confirmation notice. The appellant had made written representations which were considered and the tribunal treated him fairly; the correct procedure for addressing the justice of the sanction was an application under Rule 38(2), which had been refused at first instance.

Background and procedural posture.

• The appellant issued employment proceedings in May 2018 alleging whistleblowing detriment and disability discrimination under the Equality Act 2010. A dispute arose about disclosure of GP medical records, and an unless order was made on 2 November 2020 requiring disclosure by 11 December 2020; the order provided that failure to comply would result in dismissal of the claims pursuant to Rule 38(1).
• On 15 January 2021 the Employment Tribunal issued a confirmation notice stating that the claim had been dismissed for failure to comply with the unless order. The appellant applied to have that notice set aside under Rule 38(2); that application was refused on 5 April 2022. The appellant then appealed to the Employment Appeal Tribunal against the confirmation notice.

Nature of the appeal and relief sought.

The appellant appealed the Rule 38(1) confirmation notice seeking to challenge the decision to treat the unless order as not complied with and to have the confirmation notice set aside or reconsidered.

Issues framed by the court.

1. Whether, when deciding to issue a Rule 38(1) confirmation notice, the tribunal should assess whether any failure to comply with an unless order was "material" to the fairness of a full hearing (rather than simply whether there had been compliance).
2. Whether the appellant should have been given an opportunity to make further representations before the confirmation notice was issued.
3. Whether the regional employment judge ought to have had regard to the appellant's earlier witness statement and skeleton argument, or considered setting aside the unless order at that stage.
4. Whether reasonable adjustments or Article 6 protections required a different approach to the confirmation notice stage.

Court's reasoning and disposition.

The Employment Appeal Tribunal explained the three-stage framework under Rule 38: (1) making an unless order; (2) determining whether the order has been complied with and issuing a confirmation notice under Rule 38(1); and (3) considering any application under Rule 38(2) to set the order aside in the interests of justice. The court held that the Rule 38(1) inquiry is limited to whether the order has been complied with; arguments that non-compliance is not material are matters for a Rule 38(2) application. The regional employment judge had before him the relevant correspondence and the appellant's written responses and correctly concluded there had been total non-compliance with the disclosure requirement. There was therefore no error in issuing the confirmation notice, and the appellant had been afforded a fair opportunity to make written representations. The appeal was dismissed.

Appeal dismissed. The EAT held that the decision under Rule 38(1) is confined to whether an unless order has been complied with; it is not the stage at which a tribunal may treat non-compliance as immaterial to a fair hearing. On the facts there was total non-compliance with the unless order to produce GP records and the regional employment judge was entitled to issue the confirmation notice. The appellant had made written representations which were taken into account and was treated fairly; any contention that the sanction should be relieved was for Rule 38(2) which had been refused below.

Proceedings began in May 2018. An unless order requiring disclosure of GP records was made on 2 November 2020. A confirmation notice under Rule 38(1) was issued on 15 January 2021, dismissing the claim for non-compliance. The appellant applied under Rule 38(2) to set aside the confirmation notice; that application was refused by Employment Judge Robinson on 5 April 2022. The appellant appealed to the Employment Appeal Tribunal; permission on selected grounds was granted by HHJ Tayler on 25 May 2023 and the appeal was heard by the EAT which dismissed the appeal on 28 February 2024. The appellant’s separate appeal against the making of the unless order was out of time and an extension was refused on 18 May 2022.