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Strike Out

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Is a tribunal able to treat a Case Management Order as an ‘Unless Order’ and, following non-compliance, dismiss a Claimant’s claim without further order?

No, held the EAT in Tanase v Barchester Healthcare Limited.

In this case the tribunal issued a Case Management Order requiring the Claimant to carry-out set tasks by a certain date. Claims cannot be dismissed for non-compliance with a case management order unless a strike-out warning has first been issued. The only exception to this is where the order is an ‘unless order’. In this case, the tribunal issued a strike-out warning in relation to non-compliance, in response to which the Claimant requested an oral hearing in accordance with Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The tribunal did not set up a hearing. Instead, it dismissed the Claimant’s claim for non-compliance with the Case Management Order, which it now referred to as an ‘Unless Order’.

The EAT held that this decision could not stand. The Order in question did not say that, if it was not complied with, the claim would be dismissed without further order – it was not an ‘unless order’ under Rule 38 of the 2013 Regulations. It was a Case Management Order issued under Rule 29.