In the case of Mohammed v Guy’s and St Thomas’ NHS Foundation Trust (2023), the Employment Appeal Tribunal (EAT) have overturned an unless order that had ultimately led to the Claimant's case being struck out.
Background To the Unless Order
In the Mohammed case, the Claimant's employment tribunal claim included claims for race and disability discrimination, with the detailed particulars incorporated into a 7 page document with the title ‘Details of Claim’. The Respondent then made an application for an unless order, which the Tribunal ultimately granted. An unless order is an order that states that unless the party in question adheres to the directions stipulated by a particular deadline, then the claim / defence will be struck out.
Tribunal Order
In this particular case, the Tribunal issued an unless order that the Claimant provide further and better particulars by a certain deadline, failing which the Claimant's claim would be struck out. The unless order stated: "UNLESS by 4pm on 8 July 2020 the claimant provides to the tribunal and to the respondent further details of her claims for discrimination, as requested and highlighted in yellow on a List of Issues prepared by the respondent and dated 20 April 2020, her claim shall be dismissed without further order."
Within the Tribunal's order, the Claimant was ordered to provide further and better particulars in relation to discrimination pertaining to contractual terms, direct disability and race discrimination, victimisation, and discrimination arising from disability. Other elements of the Claimant's claim, including her harassment claim, the failure to make reasonable adjustments claim, and the factual background to the overall claim, were deemed to have been sufficiently well pleaded
Strike Out
The Tribunal's deadline in relation to the unless order was not met, with the Claimant instead focusing upon seeking a reconsideration of the Tribunal's decision to issue an unless order in the first place. Accordingly, the Tribunal struck out the Claimant's claim in its entirety on the basis of having failed to comply with the terms of the unless order
Appeal To The EAT
Upon the Claimant's claim being struck out following the expiry of the unless order, the Claimant appealed to the EAT.
Ruling
The EAT held that the Tribunal had erred in law in relation to the unless order and the strike out. It had erred in law in that the unless order had stated that the entire claim would be struck out as a result of non-compliance, when it had been held that some of the Claimant's claims had already been sufficiently well pleaded (e.g. harassment), and that the further and better particulars were only required in relation to some of the Claimant's claims (e.g. direct disability and race discrimination).
The Tribunal held that the strike out of the entire claim was disproportionate and draconian, and that there had been no consideration by the employment tribunal of rule 38 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which clearly "distinguishes between a claim or part of a claim." The EAT further held that there had been no proper consideration either of what the Claimant had already pleaded in her ‘Details of Claim’ and relevant case law.
In its Judgment, the EAT stated: "Any unless order is potentially of draconian effect, but that is especially the case if a complaint that was sufficiently particularised and/or in respect of which the requested particulars have been provided will be struck out because of a failure to comply with a request for additional information in respect of a different complaint."
The EAT added: "An order dismissing the entire claim if there is a material failure to provide additional information in respect of any one of a number of requests will generally only be appropriate where there has been serious ongoing default in compliance with the orders that suggests that the claimant is refusing to engage with the tribunal process and there has been express consideration of why such a draconian order is required when a more focussed order could be made."
