Unless Orders - Tribunal Entitled to Strike Out All Claims Following Non-Compliance
An Employment Tribunal was acting within its case management discretion when it made an 'unless order' following which all of the claimant's claims were struck out for non-compliance.
What Were the Facts of the Claim?
Mrs Rojha brought Employment Tribunal claims for unfair dismissal, race discrimination, and sex and/or pregnancy and maternity discrimination. She also sought a redundancy payment, arrears of pay and other payments. The claims were interlinked in their facts and had not been clearly pleaded.
Mrs Rojha unreasonably failed to attend two case management hearings. She also failed to meet an order to provide further particulars of her claim, to provide a statement of the remedies she was seeking, and to pay a deposit following a deposit order.
The Tribunal then made an 'unless order'. Under the terms of the order, Mrs Rojha was required to comply with the earlier case management directions. If she did not comply, this would lead to her entire claim being automatically struck out.
Why Is Case Management Important?
The Tribunal has a range of case management powers at its disposal. The aim of case management is to ensure that the issues in a claim are identified at an early stage, so that parties can fully prepare for a final hearing.
A deposit order is a case management order that can be made as an effective way of managing weaker cases whilst preserving access to justice. Under a deposit order, the party will be required to pay a deposit of up to £1,000 as a condition of continuing with the case. Under an unless order, the party will have to take specified action by a deadline, otherwise the claim (or part of it) will be dismissed.
What Did the EAT Decide?
After failing to comply with the unless order, Mrs Rojha's claim was automatically dismissed. She appealed to the Employment Appeal Tribunal (EAT). She argued that two of her claims were already properly particularised and should not have been made subject to the order. She also appealed against the deposit order, arguing that the Tribunal had only made the order because it had misconstrued her case.
The EAT considered whether the unless order should have applied to the whole of Mrs Rojha's claim. Its starting point was that unless orders are intended to be case management tools and not a punishment. Given the drastic effects of non-compliance, an unless order should only be used where its potential consequences are justified and proportionate.
However, despite the unless order applying to all of Mrs Rojha's claims, the EAT rejected her appeal. It upheld both the unless order and the deposit order, taking into account the following:
- The Tribunal was acting within its case management discretion in making the unless order. There was a legitimate concern that given the claimant's previous lack of co-operation, that her failure to progress the proceedings would jeopardise the trial. The unless order was proportionate.
- The Tribunal had permissibly concluded the claim had little reasonable prospect of success, so it was entitled to make a deposit order.
What Can Employers Learn from This Decision?
Parties to litigation should adopt a proactive approach to case management. Consideration should be given at the earliest opportunity as to the issues in the claim. If anything is unclear, a party may apply to the Tribunal in order to seek case management orders.
This decision provides an example of the kind of lack of engagement a claimant might need to show in order for an unless order to apply to the whole of a claim. We previously reported on a similar case where the outcome was different.
