The Value of a Collaborative Approach to Litigation

What Was the Background to the Claim?

In the case of Mohammed v Guy's and St Thomas' NHS Foundation Trust, Ms Mohammed brought a claim in 2018, asserting a number of types of discrimination. Some of her claims were sufficiently particularised and others were not. There followed several years of to-and-fro between the parties and the Tribunal, and in 2020 the Tribunal granted the Trust's application for an "unless order" to be made. Under the terms of the order, Ms Mohammed was required to provide additional information about most of the types of discrimination she asserted. If she failed to do so, her entire claim stood to be struck out.

Ms Mohammed did not comply with the order and her claim was indeed struck out. She appealed to the EAT.

What Did the EAT Decide?

The EAT set aside the unless order. It had regard to rule 38 of the Employment Tribunal Rules, which deals with unless orders. The wording of rule 38 provides that if a party fails to comply with an unless order, then "the claim or response, or part of it, shall be dismissed without further order". The EAT held that in this case, the unless order clearly applied to the whole of Ms Mohammed's claim and not to part of it. In making such a draconian order, the Tribunal is required to carefully consider what the consequence of non-compliance will be. If the consequence is that the entire claim will be struck out, the Tribunal must be satisfied that this would be a proportionate outcome.

The Tribunal had made an error of law in failing to consider limiting the scope of the order to the relevant parts of the claim. It had also failed to consider the proportionality of the unless order.

What Can Employers Learn from This Decision?

This is a technical decision that deals with Employment Tribunal procedure and case management. There are nevertheless useful learning points for both claimants and respondents. The EAT was at pains to point out that had the parties actively engaged in the Tribunal process, then it should have been possible to clarify the missing information at a preliminary hearing. Had this happened, the argument around unless orders could have been avoided.

In this case, the EAT noted that Ms Mohammed spent too much of her effort challenging the requests for additional information rather than seeking to provide it. For its part, the Trust made a number of applications for unless orders that sought the dismissal of the entire claim instead of focusing on the parts of it that were unclear.

There is real practical value in adopting a collaborative approach to litigation. A collaborative approach can help distil down the issues for determination at the hearing. It can also help avoid unnecessary delay, for example in requiring multiple preliminary hearings or case management applications. Where time is saved, so is cost, so collaboration can lead to cost savings for both sides.

For more information, please contact Gareth Edwards in our Employment team on 07899 915 692, or complete the form below.