A Mohammed v Guy's and St Thomas' NHS Foundation Trust
[2023] EAT 16
A Minnoch & Ors v InterserveFM Ltd & Ors
15 March 2023
[2023] EAT 35
Employment Appeal Tribunal
Some workers sued their employer for unpaid strike pay. The judge threw out their case for not following instructions perfectly. A higher court said the judge was too harsh and should look again at whether the workers mostly followed the instructions, and should not have been so strict about minor mistakes.
Key Facts
- •30 claimants appealed a decision to strike out their claims for unpaid strike pay.
- •The claims were struck out for non-compliance with an unless order requiring disclosure of schedules of loss and documents.
- •The claimants submitted a consolidated spreadsheet instead of individual schedules.
- •The employment judge found that the spreadsheet was inadequate and non-compliant with the unless order.
- •The appeal challenged the judge's failure to consider material non-compliance and to adopt a facilitative approach.
Legal Principles
Unless orders require careful drafting and consideration due to their draconian nature.
Polyclear Ltd v Wezowicz and others [2022] ICR 175
In determining compliance with an unless order, the tribunal must consider whether there has been material non-compliance, applying a qualitative rather than quantitative test. Ambiguities should be resolved in favour of the complying party.
Uwhubetine v NHS Commissioning Board England UKEAT/ 0264/18/JOJ
An unless order should be construed according to the ordinary meaning of its words, but the context is relevant. The order cannot be read expansively against the complying party.
Wentworth-Wood & Others v Maritime Transport Limited UKEAT/0316/15/JOJ
When considering relief from sanctions, a broad assessment of the interests of justice is required, considering factors like the reason for default, seriousness, prejudice to the other party, and the possibility of a fair trial.
Thind v Salvesen Logistics Ltd UKEAT/0487/09/DA
Rule 38 Employment Tribunal Rules 2013 governs unless orders; the Employment Tribunal is involved in three stages: making the order, giving notice of non-compliance, and granting relief from sanctions. Each stage has different legal tests.
Employment Tribunal Rules 2013, Rule 38
Outcomes
The appeal was allowed.
The employment judge erred in law by failing to consider material non-compliance and adopting a punitive approach. The unless order was ambiguously drafted and the judge's interpretation was overly strict.
The case was remitted to a different employment judge for reconsideration.
The error of law was fundamental. The respondent was advised to consider the extent of compliance and the possibility of relief from sanctions for each claimant.