A Chauhan v University of Leicester
[2023] EAT 112
A Mohammed v Guy's and St Thomas' NHS Foundation Trust
24 February 2023
[2023] EAT 16
Employment Appeal Tribunal
Someone sued their employer for discrimination. The judge said if they didn't give more information, the whole case would be thrown out, even parts that were already fine. A higher court said the judge was wrong; it's unfair to throw out the entire case just because some parts weren't perfect.
Key Facts
- •Ms A Mohammed brought a claim against Guy's and St Thomas' NHS Foundation Trust for various types of discrimination.
- •The Employment Tribunal (ET) issued an 'unless order' requiring additional information, threatening to strike out the entire claim if not fully complied with.
- •The order encompassed complaints that were already sufficiently particularized or where no additional information was requested.
- •The claimant did not fully comply with the order and the ET struck out the claim.
- •The claimant appealed to the Employment Appeal Tribunal (EAT).
Legal Principles
Unless orders under Rule 38 of the Employment Tribunal Rules 2013 must be carefully worded to avoid disproportionate consequences.
Employment Tribunal Rules 2013, Rule 38
An unless order should be construed according to its ordinary meaning; the party required to comply must understand the requirements.
Wentworth-Wood & Others v Maritime Transport Limited UKEAT/0316/15/JOJ
Ambiguities in an unless order should be resolved in favor of the party required to comply.
Uwhubetine v NHS Commissioning Board England UKEAT/ 0264/18/JOJ
Striking out an entire claim due to non-compliance with an unless order concerning only some aspects must be proportionate; care is needed, especially with multiple claims.
Royal Bank of Scotland v Abraham UKEAT/0305/09/DM; Johnson v Oldham Metropolitan Borough Council UKEAT/0095/13/JOJ
The EAT can overturn an ET's case management decision if the ET failed to consider relevant factors, considered irrelevant factors, acted perversely, or misdirected itself on the law.
Andreou v Lord Chancellor [2002] EWCA Civ 1192; DPP Law Ltd v Greenberg [2021] EWCA, Civ 672
Material non-compliance, not substantial compliance, is the relevant test for unless orders, particularly concerning particularisation.
Johnson v Oldham Metropolitan Borough Council UKEAT/0095/13/JOJ
Outcomes
The EAT allowed the appeal.
The ET erred in law by making an unless order that resulted in the entire claim being struck out for any material non-compliance, including parts of the claim that were already sufficiently particularized or where no further information was requested. The ET failed to consider Rule 38 and relevant case law on the proportionality of such orders.