EAT Decision in S Wakeman v Boys and Maughan Solicitors Highlights Importance of Compliance and Communication in Employment Tribunal Proceedings

Citation: [2024] EAT 39
Judgment on


The Employment Appeal Tribunal (EAT) decision in the case of S Wakeman v Boys and Maughan Solicitors & Anor [2024] EAT 39 addresses crucial legal principles surrounding ‘Unless Orders’ and the obligations of parties regarding compliance and communication in the UK employment law context. This case highlights the judicial emphasis on the fairness of the litigation process, the importance of adherence to procedural rules by the parties, and the role of Employment Tribunals in safeguarding the overriding objective of dealing with cases fairly and justly.

Key Facts

Mr. S Wakeman, appellant and former employee of Boys and Maughan Solicitors, challenged an Employment Tribunal’s decision related to an ‘Unless Order’, established during his original claim for unfair dismissal, discrimination, and other complaints. The crux of the appeal involved procedural issues, specifically the failure of the respondents to copy the appellant into communications with the Tribunal and the Tribunal’s subsequent handling of an ‘Unless Order’ which required the appellant to provide certain documents and a witness statement by a specified date, failing which his claims would stand struck out.

Several legal principles are crucial to understanding the decision in this case:

Fairness and Equal Footing

Rule 2 of the Employment Tribunal (ET) Rules encapsulates the overriding objective requiring cases to be handled fairly, ensuring that parties are on an equal footing. Non-compliance with this requirement, notably when one party is not copied into correspondence (as mandated by Rule 92), constitutes a significant procedural irregularity.

Case Management Orders

Rules 29 and 30 of the ET Rules provide guidance on case management orders, including their variation, suspension, or setting aside when necessary in the interests of justice, particularly where a party hasn’t had a reasonable opportunity to make representations.

Unless Orders

The principles governing ‘Unless Orders’ are outlined in Rule 38 and case law Redhead v Hounslow LBC (UKEAT/0086/13/LA), which clarifies the risk a party undertakes if they rely solely on an application to vary an order instead of compliance. The Thind v Salvesen Logistics Ltd (UKEAT/0487/09/DA) case emphasizes the importance of compliance and the consequences of non-compliance, considering the reasons for default and whether a fair trial remains possible.

Relief from Sanctions

When considering relief from sanctions, various factors are balanced, including the seriousness of the default, prejudice to the other party, and the possibility of a fair trial. As HHJ Eady QC indicated in Morgan Motor Co Ltd v Morgan (UKEAT/0128/15/DM), the timing of this assessment in relation to a fair trial is key and generally should consider the position at the time of the breach.


The EAT found that the Employment Tribunal erred in its approach to the application to vary, set aside an Unless Order, or grant relief from sanction. The appeal was allowed, and the case was to be remitted for redetermination by a different Employment Judge. The EAT’s decision emphasized several pivotal points:

  1. The Tribunal made the second Unless Order without the appellant having had the opportunity to address correspondence, which had not been copied to him, contrary to Rule 2, Rule 29, Rule 30, and Rule 92 of the ET Rules.

  2. The Tribunal’s decision-making process in handling the Unless Order and granting relief from sanction was not systematically followed in the proper sequence.

  3. Employment Judge Burge’s analysis did not adequately consider whether a fair trial could still be possible at a future date, given no final hearing was set at the time of non-compliance and the Preliminary Hearing.

The EAT’s decision also emphasizes the expectations of parties to work cooperatively to achieve the overriding objective of fairness in the litigation process.


The EAT’s judgment in S Wakeman v Boys and Maughan Solicitors & Anor serves as a cautionary tale on the importance of proper communication and the application of procedural fairness in Employment Tribunal proceedings. The case accentuates the necessity for parties to be given a reasonable opportunity to make representations and highlights the fundamental nature of the overriding objective in ensuring fairness and justice in the UK’s legal system. The EAT underscores the Tribunal’s obligation to facilitate, rather than hinder, the effective administration of justice.