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Should a tribunal strike out a claim for non-compliance with an Unless Order because it thought the witness statement was inadequate?

No, held the EAT in Leeks v Brighton & Sussex UH NHS Trust.

The Claimant was a litigant in person who had health issues requiring the tribunal to make adjustments. She brought claims for unlawful discrimination arising from the withdrawal of a job offer. An Unless Order was made requiring her to exchange witness evidence by a specified date. She applied to the tribunal to vary the order but did not receive a response by the deadline. She served a holding statement in substantially the same terms as her ET1. The Respondent treated this as non-compliance with the Unless Order. The Claimant did not attend the start of the full merits hearing where this issue was addressed. The tribunal made a decision in her absence and dismissed her case. She appealed.

The EAT allowed her appeal. It was not an error of law to consider the question of compliance with the unless order in her absence. However it was an error for the tribunal to treat her served statement as an “interim” statement. The Claimant had made clear that she was serving this in order to comply with the order. She had not indicated that she would not rely on that statement at the full merits hearing. The tribunal had not addressed the question of material compliance. She had complied with the Unless Order and the tribunal had erred in dismissing her claim under s38 of The Employment Tribunals Rules of Procedure 2013.

Thanks to Karen Jackson of didlaw for preparing this case summary.