R Peposhi v Go Crisis Limited & Anor

An unless order must be construed objectively. The question at the compliance stage is what the order required, what the party did, and whether those acts materially complied with its terms. Any ambiguity is resolved in favour of the party required to comply.

Where an order requires an explanation, but does not require a valid or substantiated explanation to a stated standard, the tribunal must not dismiss the claim because it considers the explanation inadequate. That substitutes an impermissible qualitative assessment for the required assessment of compliance. Unless orders are draconian case-management measures and should not be used to determine credibility, conduct, or the strength of a claim.

The claimant brought disability-discrimination claims against two respondents. During a remote final hearing, technical difficulties arose and he declined to rejoin by telephone, relying on his hearing impairment. The Employment Tribunal postponed the hearing and made an unless order requiring him, by a stated date, to send a written statement explaining why he was unable to rejoin by CVP or telephone, with relevant documentary evidence.

The claimant sent an email account, a statement from his sister, medical material, and documents concerning his access to a laptop. The Employment Judge held that he had not materially complied because the material did not substantiate a valid reason for refusing to rejoin by telephone, and the claim stood dismissed under rule 38 of the Employment Tribunal Rules of Procedure 2013.

He appealed on the grounds that the Judge applied the wrong approach to material compliance and construed ambiguity in the order against him.

1. Appeal allowed. The Employment Judge erred in holding that the claimant had failed to comply with the unless order. The required inquiry was objective: what the order required, what the claimant had done, and whether those acts met its requirements.

2. The order required a written statement, an explanation for the inability to rejoin by CVP or telephone, and relevant documentary evidence. The claimant provided those things within time. His email gave his account, and the attached material was relevant, at least tangentially, to the stated issue.

3. The order did not specify the form or author of the statement. It did not require proof to a particular standard, nor did it require a valid or satisfactory explanation. It was therefore immaterial, at the compliance stage, whether the Judge accepted the claimant’s explanation as a good one.

4. There was also ambiguity in the expression “unable to rejoin the final hearing”. Any such ambiguity had to be resolved in the claimant’s favour, rather than by reference to what the maker of the order had intended. The Judge’s evaluation of whether the explanation substantiated the claimant’s non-attendance was a qualitative assessment inconsistent with the terms of the order and with the facilitative approach to material compliance.

5. The EAT added that unless orders should not be used to investigate honesty, credibility, litigation conduct, or the merits of an explanation. If a tribunal intends to make the validity of an account decisive, that must be made clear and procedural fairness may require submissions and consideration of whether the original panel should decide the question. The Tribunal should instead consider its other case-management powers where those concerns arise.

The dismissal pursuant to rule 38 of the Employment Tribunal Rules of Procedure 2013 could not stand.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and held that the Employment Judge had erred in finding non-compliance with the unless order.
• Employment Tribunal, Watford: By letter dated 21 December 2023, confirmed that the claimant’s disability-discrimination claims stood dismissed under rule 38 of the Employment Tribunal Rules of Procedure 2013 for non-compliance with an unless order dated 5 October 2023.