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Unless Order

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Was it an error of law to strike out an entire claim when only parts of it were not properly particularised?

Yes, held the EAT in Mohammed v Guy’s & St Thomas’ NHS Foundation Trust.

The Claimant worked as a Clinical Research Sister. She submitted claims for disability and race discrimination. The factual allegations were set out plainly. For disability it was unclear which provisions of the Equality Act were relied on. An order was made for further particulars on 27 February 2019. The Claimant’s solicitors clarified the reasonable adjustments claim only on 13 March.

A first unless order application was refused. On 13 September a second application was made. The tribunal advised the Claimant that strike out would be considered if she failed to provide the information. On 20 November the Claimant sought an extension to appoint new solicitors. The Respondent made a third application on 7 January 2020. This time the application succeeded. The Claimant had 42 days to comply. EJ Siddall made an Unless Order on 27 May 2020 stating “It is very clear that the claimant is struggling to understand the information she needs to provide and the tasks she needs to complete. However that is part of the tribunal process”. The information requested was not onerous or unreasonable. The entirety of the claim was struck out.

The EAT held that the judge should have struck out the claims which were non-compliant and allowed others (such as harassment and reasonable adjustments) to proceed. The Employment Tribunal Rules of Procedure rule 38 provides that if an unless order is not complied with the claim or part of it shall be dismissed without further order. Failing to consider that some parts of the claim were capable of determination was an error of law.

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