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Unless Order

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Was it an error of law to strike out Mr Minnoch's claim, and his 36 colleagues' claims, for breach of an 'unless order'?

Yes, held the EAT in Minnoch v InterserveFM Ltd and ors.

Mr Minnoch and 36 Claimants brought claims for pay withheld for strike days and a failure to detail the deductions on their payslips. An Unless Order was made against them during proceedings. The Claimants had allegedly failed to disclose all relevant documents in a list of documents said to be “cobbled together at the last minute”. An incomplete spreadsheet was submitted in lieu of a Schedule of Loss. The claims were struck out. The Claimants appealed on three grounds:

  1. Failure to consider whether there had been material non-compliance, Marean Shipping (London) Ltd v Kefalas;
  2. Failure to adopt a qualitative test with a facilitative rather than punitive approach, Uwhubertine v NHS Commission Board England and Ijmoah v Nottinghamshire Healthcare NHS Foundation Trust;
  3. Taking into account irrelevant factors/impermissibly reading the original order expansively against the offending party, Wentworth-Wood v Maritime Transport Ltd.

Rule 38(1) of the The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that if an unless order is not complied with a claim or or part of it with it shall be dismissed without further order. Particular care must be taken in making them because the automatic consequences of non-compliance are so draconian, Polyclear Ltd v Wezowicz. Partial non-compliance may result in a whole claim being struck out, Royal Bank of Scotland v Abraham.

Paragraphs 33.1 to 33.16 of the judgment provide a useful checklist on the application of the law. Appeal upheld on all three grounds. Case remitted.

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