Where a Claimant fails to comply with an 'unless' order, but a fair trial is still possible, is a tribunal still entitled to strike out that claim?
Yes, held the Employment Appeal Tribunal in Tattersall v Mersey & West Lancashire Teaching Hospitals NHS Trust.
The tribunal issued an Unless Order on 2 November 2020. On 15 January 2021, the tribunal issued a notice that it had not been complied with and that the Claimant’s claims had been struck-out.
The Claimant appealed. He argued that, although he had not complied with the Unless Order, a fair trial of the claim remained possible.
The EAT disagreed with the Claimant’s position and confirmed that the tribunal’s notice of strike-out should stand.
The relevant rule in relation to Unless Orders is set out in Rule 38(1) Employment Tribunals Rules of Procedure. When deciding whether to issue a notice of confirmation of non-compliance and strike-out under Rule 38(1), the issue for the tribunal is limited to whether the unless order has been ‘complied with’.
Rule 38(1) does not provide scope for a party to argue that they have not complied but that this is not material. In this case, there had been total non-compliance with the unless order and there was no basis on which the tribunal could have done anything other than issue the notice.
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