S Wakeman v Boys and Maughan Solicitors & Anor

An Employment Tribunal considering whether to vary or set aside an unless order must apply the overriding objective and take account of whether the affected party had a reasonable opportunity to make representations before the order was made. Correspondence placed before the Tribunal in support of an application must ordinarily be copied to the other party.

An application to vary an unless order does not suspend the obligation to comply. However, before declaring a claim struck out, the Tribunal must follow the proper sequence: determine whether to vary or set aside the order; determine material non-compliance; give notice of the resulting dismissal; and then consider relief where applicable. A conclusion that a fair trial is no longer possible requires adequate analysis of the current procedural position.

The claimant, a solicitor formerly employed by the first respondent, brought Employment Tribunal claims including automatic unfair dismissal, discrimination, protected-disclosure detriment and unpaid sums.

Following disputes about disclosure and witness statements, the Tribunal made two unless orders. The first was revoked after the claimant complained that the respondents had sent uncopied correspondence to the Tribunal. The second required disclosure and witness statements by 21 May 2021. The claimant supplied disclosure documents but no witness statement.

Employment Judge Burge refused to vary or set aside the second unless order, refused relief from sanction, and held that the claim stood struck out. The claimant appealed. The central issue was whether the Tribunal had lawfully addressed the fairness of the making of the second unless order and the possibility of a fair trial.

1. Appeal allowed. The decision refusing to vary or set aside the second unless order and refusing relief from sanction was set aside. The case was remitted to a differently constituted Employment Tribunal for redetermination.

2. The claimant had seen the original application for an unless order, but not the respondents’ later emails pressing for such an order and making further criticisms of his conduct. Those communications were material. Their non-service had been a key reason for revoking the first unless order, and the position had not materially changed when the second order was made.

3. Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rules 2, 29, 30 and 92, fairness, equality of arms and open correspondence were central considerations. Save where urgency makes prior representations impracticable, a Tribunal considering whether to vary, suspend or set aside an order must take account of the affected party’s lack of a reasonable opportunity to make representations. The Employment Judge’s conclusion that the earlier procedural failure did not affect the second order had no proper basis.

4. The Tribunal also insufficiently analysed whether a fair trial remained possible. No final hearing had been relisted after the earlier postponement. It should have considered the disclosure concerns, listed the matter, and fixed a new date for witness statements, supported if necessary by an unless order.

5. The EAT further identified the proper procedural order. The Tribunal should first decide whether to vary or set aside the unless order. If it remains, it should determine whether there was material non-compliance and give the notice required by Rule 38(1). Relief from sanction may then be considered. Although the claimant accepted non-compliance with the witness-statement requirement, that did not determine the applications to vary or set aside the order.

• Employment Appeal Tribunal: Allowed the appeal and remitted the matter for redetermination: [2024] EAT 39.
• Employment Tribunal: Employment Judge Burge refused to vary or set aside the second unless order, refused relief from sanction, and held that the claim stood struck out (judgment sent to the parties on 23 March 2022).