Dr S Bi v E-ACT
[2023] EAT 43
Dr M Tattersall v Mersey and West Lancashire Teaching Hospitals NHS Trust (formerly Southport & Ormskirk Hospital NHS Trust)
28 February 2024
[2024] EAT 24
Employment Appeal Tribunal
A court order said someone had to give medical records. They didn't. Their case was thrown out. They appealed, but didn't show up to court, so the appeal was dismissed. The higher court said the first court was right to focus on whether the order was followed, not whether not following it mattered.
Key Facts
- •The Appellant, Dr Tattersall, failed to comply with an Unless Order to provide GP records by a specified deadline.
- •The Employment Tribunal (ET) issued a confirmation notice striking out the claim due to non-compliance.
- •Dr Tattersall appealed the confirmation notice to the Employment Appeal Tribunal (EAT).
- •Dr Tattersall did not attend the EAT hearing.
- •The EAT considered whether the ET should have considered material compliance and whether Dr Tattersall should have been given further opportunity to make representations.
- •Dr Tattersall has a diagnosis of Autistic Spectrum Condition (ASC).
Legal Principles
When deciding whether to issue a notice of confirmation pursuant to Rule 38(1), the ET's issue is limited to whether the unless order has been 'complied with'. A party may argue substantial compliance, but Rule 38(1) doesn't allow arguing immaterial non-compliance.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 38(1)
The ET, when considering compliance, doesn't revisit whether the unless order should have been made. The order is a given.
Uwhubetine v NHS Commissioning Board England UKEAT/0264/18; Minnoch v Interserve FM Ltd [2023] EAT 35
The ET must determine whether to hold a hearing or allow representations if there's doubt about compliance. The overriding objective of fairness and justice applies.
Uwhubetine at [44]; Minnoch at [33.8]; Wentworth-Wood v Maritime Transport Ltd UKEAT/0316/15
'Material non-compliance' means a failure to comply in any material respect, impacting the fairness of the hearing. Compliance needn't be precise, but a qualitative assessment is needed. However, with total non-compliance, arguing immateriality is impermissible.
Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; Johnson v Oldham Metropolitan Council UKEAT/0095/13
A confirmation notice triggers a right to apply to set aside the order under Rule 38(2), which is an application for relief against sanctions. Factors considered include the reason for default (deliberate or not), seriousness, prejudice to the other party, and the possibility of a fair trial.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 38(2); Thind v Salveson Logistics Ltd UKEAT/0487/09
Outcomes
Appeal dismissed.
The EAT found total non-compliance with the Unless Order. The ET correctly focused on whether the order was complied with, not the materiality of non-compliance at that stage. Dr Tattersall was given ample opportunity to make representations but chose not to attend the hearing.