Was the tribunal right to conclude that, in serving his witness statement on the tribunal, the Claimant had complied with an Unless Order requiring him to serve his witness statement on the other side?
No, held the EAT in Elemide v Bauhaus Educational Services.
During the course of proceedings, the tribunal made an Unless Order that the Claimant’s claim would be struck out if he did not serve a witness statement on the Respondent’s representative by 27 October 2021.
On 25 October 2021, the Claimant sent his witness statement to the tribunal by email. He did not send a copy to the Respondent’s representative or CC them into his email to the tribunal. The Respondent asked for confirmation that the claim had been struck out for non-compliance with the Unless Order.
The tribunal decided that the Claimant had complied with the Unless Order. The Respondent appealed.
The EAT held that the tribunal had made an error of law. The Claimant had not complied with the terms of the Unless Order. He should have provided his witness statement to the Respondent’s representative. Service on the tribunal was not sufficient.
The EAT ordered the tribunal to issue notice that the proceedings had been dismissed for non-compliance with the Unless Order. The Claimant would then have 14 days to apply for that dismissal to be set aside in the interests of justice.
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