Tribunals must consider whether dismissing a whole claim is proportionate before making an unless order

Background

In Chowdhury v Secretary of State for Health and Social Care, the claimant brought claims of discrimination, unfair and wrongful dismissal, and other payments owed. She was taken ill during a part-heard final hearing, following which the hearing was postponed.

The Employment Tribunal ordered her to provide medical evidence on her fitness to participate in the resumed hearing, whether she required any adjustments and, if she remained unfit, when she was likely to become fit.

The claimant did not provide the specified evidence, and the Tribunal made an unless order providing that all her remaining claims would be dismissed if she failed to comply. When the claimant failed to comply with the unless order, her claims were dismissed by the Tribunal and she appealed on two grounds: first against the making of the unless order, and second against the notice confirming dismissal.

EAT decision

The Employment Appeal Tribunal (EAT) held that, before making an unless order, a tribunal must be satisfied that automatic dismissal would be a proportionate consequence of any material non-compliance. Relevant factors may include how much of the claim would be dismissed, what the party is being asked to do, how much time they have been given and whether third parties are involved, how important compliance is to a fair hearing, the party's past record of non-compliance, and whether a less drastic measure would achieve the same purpose.

The tribunal's concerns were legitimate, and it was entitled to apply pressure. However, it did not consider whether dismissing the entire claim would be proportionate. Because of this, the unless order was set aside.

The EAT found that the claimant had been in material non-compliance with the unless order. However, on the basis that the unless order had been set aside, the notice confirming dismissal had no continuing effect.

The case was remitted to the same tribunal to resume the hearing.

Learning points for employers

When applying for an unless order, employers should explain why dismissing the whole claim would be proportionate, rather than relying only on the other side's delay or lack of compliance.

Employers should also be ready to explain why less drastic options, such as relisting the hearing on the evidence already available, would not be enough. A narrower order, a longer deadline or a sanction limited to the affected issues may be more likely to survive an appeal.

For more information or advice, please get in touch with Keren Felix in our Employment team.