S Wakeman v Boys and Maughan Solicitors & Anor
[2024] EAT 39
Bauhaus Educational Services Limited v Oluwaseyi Elemide
30 November 2023
[2023] EAT 161
Employment Appeal Tribunal
A claimant missed a deadline to give important documents to the other side. Even though he gave them to the court, the court said he didn't follow the rules. The higher court agreed and said the case is over, but the claimant can still try to get it reopened.
Key Facts
- •The Claimant (Mr Oluwaseyi Elemide), acting in person, failed to serve his witness statement on the Respondent (Bauhaus Educational Services Limited) despite lodging it with the Tribunal by the deadline.
- •An Unless Order required service of the witness statement on the Respondent by 27 October 2021. The Claimant only sent it to the Tribunal.
- •The Employment Judge wrongly found that the Claimant had complied with the Unless Order.
- •The Respondent appealed this decision to the EAT.
Legal Principles
An Unless Order must be complied with strictly. Service on the Tribunal does not equate to service on the opposing party.
Employment Tribunal Rules 2013, Rule 38
Rule 38(1) ETR 2013 requires the Tribunal to give written notice if a claim is dismissed due to non-compliance with an Unless Order.
Employment Tribunal Rules 2013, Rule 38(1)
Rule 38(2) ETR 2013 allows a party whose claim is dismissed to apply to have the order set aside within 14 days of receiving the Rule 38(1) notice.
Employment Tribunal Rules 2013, Rule 38(2)
The EAT's role at Stage 2 (post-Unless Order) is to determine whether there has been compliance with the Unless Order, focusing on the order's meaning and the facts of compliance, not culpability or consequences.
Minnoch & Others v Interserve FM Ltd [2023] IRLR 491, Wentworth Wood v Maritime Transport Ltd [2016] UKEAT 0316/15/JOJ
Rule 92 ETR 2013 requires parties to send copies of communications to the Tribunal to all other parties.
Employment Tribunal Rules 2013, Rule 92
Outcomes
The EAT allowed the appeal.
The Employment Judge erred in finding that the Claimant complied with the Unless Order. The order was unambiguous, requiring service on the Respondent, which did not occur.
The EAT ordered the Tribunal to issue a notice under Rule 38(1) informing the Claimant that his claim was dismissed.
This is the correct procedural step following non-compliance with an Unless Order, triggering the 14-day period for applying for relief from sanction under Rule 38(2).