Dismissal for non-compliance with an Unless Order too draconian

7 March 2023

Rule 38 of the Employment Tribunal Rules 2013 provides that an order may specify that a claim or response, or part of it, shall be dismissed without further order, if the order is not complied with by the date specified (an “unless order”). That is a powerful weapon in the employment judge’s armoury.

However, given that the consequences of non-compliance with an unless order are so draconian, case law on the interpretation of Rule 38 indicates that the approach should be facilitative not punitive, with any ambiguity resolved in favour of the party who is required to comply. As a result, any non-compliance must be material if it is to lead to the dismissal of the claim or response.

This issue has recently been revisited by the EAT in Mohammed v Guy’s and St Thomas’ NHS Foundation Trust 2020/000587, where HHJ Tayler pointed out that Rule 38 specifically permits an order that would provide for part of a claim to be dismissed if there is non-compliance. Given that the claimant had in fact already complied with at least some of the requests for further information which had been raised in respect of her claims of disability discrimination, it was held that the tribunal had erred in law in making an unless order covering her entire claim, when only parts of it required further particularisation.

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