EAT Issues Guidance on Unless Orders
Against the backdrop of a rising number of appeals against unless orders, the Employment Appeal Tribunal (EAT) has issued useful guidance for Tribunals.
What Is an Unless Order?
An unless order is a type of case management order an Employment Tribunal may make under rule 38 of the Employment Tribunal Rules of Procedure 2013 (the Rules). The Rules provide that if a party fails to comply with an unless order by a given deadline, the claim or response (or part of it), shall be automatically dismissed.
What Were the Facts of This Case?
In the case of Minnoch and others v Interserve FM Ltd, Mr Minnoch was one of 37 claimants who brought claims in respect of withheld pay. The Tribunal ordered them to serve a schedule of loss for each claimant and they failed to do so. The judge then made an unless order, stating that the claim of any claimant who failed to comply by the deadline would be struck out.
On the day of the deadline, the claimants' solicitors sent a spreadsheet showing the pay deductions, in an attempt to comply with the order. However, the judge still struck out all the claims, on the basis that a separate schedule was required for each claimant and given that some information was missing from the schedule that had been submitted.
The claimants appealed to the EAT. They argued that the judge had failed to consider whether there had been material non-compliance with the unless order. They also argued there was ambiguity in the wording of the original order, and that the judge took irrelevant factors into account.
What Did the EAT Decide?
The EAT allowed the appeal. The judge had failed to consider whether there had been material non-compliance with the unless order. The judge had attached too much importance to the way the information had been presented (in one schedule instead of individual schedules). The judge's approach was punitive rather than facilitative. The case was remitted to a different employment judge.
The EAT also set out the guidance for Tribunals on making unless orders:
- Making an unless order - care should be taken in making unless orders because of the draconian consequences of non-compliance. An order should be drafted so that it is easy to determine whether there has been material non-compliance and so the consequences of breach are clear. This is particularly important if a party is required to more than one thing under an unless order, as the consequence of partial compliance should be considered. Thought should also be given to the appropriate sanction for non-compliance with an order.
- Giving notice of non-compliance - when giving notice of non-compliance, the question is whether there has been material compliance and the approach should be facilitative rather than punitive. If there has been some attempt at compliance, it may be appropriate to give the party an opportunity to make submissions before a decision is taken. In the case of any ambiguity in the drafting of the unless order, this should be resolved in favour of the party who was required to comply.
- Relief from sanction - a broad assessment of what is in the interests of justice will be required, including what was the reason for the default, whether it was deliberate, whether a fair trial remains possible and whether the default caused prejudice to the other party. Each case will depend on its own facts.
What Can Employers Learn from This Decision?
There have been a number of recent appeals against unless orders, including a case where a Tribunal was entitled to strike out a whole claim for non-compliance with an unless order, and another case where the unless order was set aside. The newly-issued guidance demonstrates how the appropriate outcome in any given case will depend on the individual circumstances.