Z Chowdhury v The Secretary of State for Health and Social Care

Before making an unless order, an Employment Tribunal must assess whether the dismissal it stipulates would be a proportionate consequence of material non-compliance. The assessment should address the nature of the requirement, the scope of the potential dismissal, the importance of compliance, the history of default and whether a less drastic measure would meet the order’s purpose. An order may require a party to obtain medical evidence, even where that involves a medical practitioner, but the practical demands of compliance belong in the proportionality assessment.

Once an unless order is made, the tribunal deciding whether dismissal has occurred determines only whether there was material non-compliance. It does not revisit the order’s propriety or decide an application for relief from sanctions at that stage.

Chowdhury brought discrimination, unfair and wrongful dismissal, and payment claims against the Secretary of State for Health and Social Care. During a part-heard final hearing, the Employment Tribunal adjourned after Chowdhury became unwell and ordered her to provide medical evidence about her fitness to participate in the resumed hearing, any necessary adjustments and when she might become fit.

After the evidence was not supplied, the Tribunal made an unless order requiring it by a deadline, with all remaining claims to be dismissed for material non-compliance. The Tribunal later gave notice that claims had been dismissed. It refused an application to set aside the order, a refusal which was not appealed. Chowdhury appealed the making of the order and the notice; the Secretary of State cross-appealed about the scope of the notice. The central issue was whether dismissal of all claims had been assessed as a proportionate consequence of future non-compliance.

1. The appeal against the unless order was allowed. An unless order is a conditional judgment with a serious automatic consequence. The Tribunal had to consider whether dismissal of the whole claim would be proportionate to a future material breach, rather than merely whether pressure to comply was justified. The relevant considerations are not exhaustive. They may include the scope of the dismissal, the practical nature of the requirement and time allowed, the importance of compliance to a fair hearing, the history and explanation of non-compliance, and whether a less drastic measure would serve the order’s purpose. The Tribunal had legitimate concerns about delay, earlier default and the need for medical evidence, but did not assess whether dismissing the entire claim would be proportionate. It also failed to consider whether it could instead relist the hearing on the information available if the evidence was not produced.
2. There is no general bar to requiring a litigant to provide medical evidence through an unless order. Involvement of a medical practitioner does not itself make compliance impossible where the party can seek evidence from an available practitioner. That practical involvement must, however, be considered when assessing proportionality. Here, the claimant’s completed evidence and the connection between the requested evidence and relisting called for consideration of a less drastic consequence.
3. The order required evidence from a medical practitioner; a lay account of a medical consultation would not satisfy its terms. At the notice stage, the Tribunal had to determine whether there had been material non-compliance, assessed qualitatively. It was not to revisit whether the unless order should have been made or whether relief from sanctions was fair. The claimant had not supplied evidence addressing the specified matters, so the finding of material non-compliance disclosed no independent error. The notice nevertheless had no continuing effect once the underlying order was set aside.
4. The respondent’s cross-appeal was dismissed. The case was remitted, if practicable, to the same Tribunal to resume the part-heard hearing. The Tribunal may make further case-management orders about medical evidence and relisting.

1. Employment Appeal Tribunal: In [2026] EAT 151 , allowed the appeal against the unless order, set aside the notice confirming dismissal as a consequence, dismissed the respondent’s cross-appeal and remitted the case, if practicable, to the same Employment Tribunal.
2. Employment Tribunal: During a part-heard hearing, made an unless order requiring specified medical evidence and later confirmed dismissal for material non-compliance. It refused an application to set aside the order; that refusal was not appealed.