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Unless orders: failure to send witness statement to respondent meant claim was struck out

on Friday, 16 February 2024.

A Tribunal should have struck out a claim where the claimant failed to send his witness statement to the respondent despite being under an express obligation to do so.


The case of Bauhaus Educational Services Ltd v Elemide deals with the question of whether a claimant had complied with the terms of an Unless Order relating to the service of witness statements.

An Unless Order is a type of case management order an Employment Tribunal may make under the Employment Tribunal Rules of Procedure (the Rules). The Rules provide that if a party fails to comply with an Unless Order by the given deadline, the claim or response (or part of it), shall be automatically dismissed.


The claimant was a litigant in person who brought various Employment Tribunal claims against his former employer. The majority of the claims were due to proceed to a full hearing in December 2021. In October 2021, for reasons not explained in the Employment Appeal Tribunal (EAT) judgment, the Tribunal judge made an Unless Order. The Unless Order required the claimant to serve a witness statement on the "respondent's representative" by a stated deadline. The Unless Order said that if the claimant failed to comply, his claims would be dismissed.

In advance of the deadline, the claimant sent a copy of his witness statement to the Tribunal. He failed to send a copy to the respondent's representative and nor did he copy the respondent's representative into his correspondence to the Tribunal. The respondent's representative emailed the Tribunal to ask that the claims be struck out for failure to comply with the Unless Order. In response, the claimant provided a copy of the witness statement and apologised for his "error". He asked that the claim not be struck out over a "minor technical issue".

The Tribunal decided that by sending the witness statement to the Tribunal, the claimant had complied with the Unless Order, and that the case could proceed. The respondent appealed to the EAT, arguing that the Tribunal had been wrong to conclude that the claimant had complied with the Unless Order.

EAT decision

The EAT allowed the appeal. The claimant, having failed to serve his witness statement on the respondent's representative, had not complied with the Unless Order. The EAT ordered the Tribunal to dismiss the claims for non-compliance with the Unless Order. Once the Tribunal issues the correct order, the claimant will then have fourteen days to apply for the order to be set aside in the interests of justice.

Learning points

This case provides an example of the potentially far-reaching consequences of an apparently simple administrative error or oversight. It also offers a practical example of how Unless Orders work in practice: once an Unless Order is imposed, the issue of compliance must be assessed in straightforward terms. The question of whether it is in the interests of justice to give relief from sanction in cases of non-compliance, is a question which must be considered separately after the Tribunal has issued the correct order and the claimant has applied for relief from sanction in response.

For more information or advice, please contact Jessica Scott-Dye in our Employment team on 0117 314 5652, or complete the form below.

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