News and Events

Non Compliance with Unless Orders

  • Posted

[Thanks to Simon McCrossan, squatter at New Walk Chambers, for preparing this case summary]

When a party fails to comply with an 'Unless Order' does the employment tribunal possess any discretion to refuse to strike out a claim?

No, says the EAT in Scottish Ambulance Service v Laing.

Upholding the Respondent's appeal, Lady Smith held that an 'Unless Order' made under Rule 13(2) of the employment tribunal rules amounts to a conditional judgment, which will result in the automatic strike out of proceedings in the event of whole or partial non-compliance: "it is not open to a tribunal to revisit its decision that a failure to comply will result in strike out".

In first instance, the tribunal had erred by applying the incorrect test under Rule 18(7) thereby incorrectly exercised its discretion in considering a variety of factors including the degree of compliance, fair notice and previous conduct which led to the eventual refusal (following further interim hearings) to strike out the Claimant's case on the grounds of insufficient particulars.  In any event, the EAT held that the Claimant failed to comply with the 'Unless Order' by the compliance date and that documentation considered after this time was not relevant for the purposes of striking out the claim.