W Davey v Harrods Ltd
[2023] EAT 133
Daniel Tanase v Barchester Healthcare Limited
1 June 2023
[2023] EAT 84
Employment Appeal Tribunal
A court wrongly dismissed someone's case for not following an order. The order was actually just a request, not a final order, and the person asked for a hearing which they didn't get. The higher court sent the case back to be dealt with properly.
Key Facts
- •Mr. Daniel Tanase appealed the dismissal of his unfair dismissal and race discrimination claims by an Employment Tribunal.
- •The Tribunal dismissed the claims due to alleged non-compliance with an order dated October 3, 2022.
- •The October 3, 2022 order was not an 'unless order' under Rule 38 but a case management order under Rule 29.
- •A strike-out warning under Rule 37 was issued, and Tanase requested an oral hearing under Rule 37(2), which was not granted before the dismissal.
- •The order contained elements outside Tanase's control, requiring actions from the respondent's solicitors and a witness.
Legal Principles
An 'unless order' under Rule 38 results in a conditional judgment if not complied with.
Scottish Ambulance Service v. Laing EATS 0038/12
Rule 37 allows for a strike-out warning for non-compliance with case management orders.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
A case management order under Rule 29 cannot direct a claimant to perform actions outside their control.
None explicitly stated, but implied by the judgment.
Outcomes
The Employment Tribunal's judgment of November 10, 2022, was set aside.
The order of October 3, 2022, was not an 'unless order,' and the requested oral hearing under Rule 37(2) was not held before dismissal, rendering the dismissal procedurally incompetent.
The claims of unfair dismissal and race discrimination were remitted to the Employment Tribunal to proceed.
To rectify the procedural errors and allow a fair hearing.