The claimant brought various claims of discrimination including on the basis of race, sex and sexual orientation.    The issue which was appealed to the Employment Appeals Tribunal was the Employment Tribunal’s decision to dismiss her claim due to the failure to apply with an unless order.   In August 2018, the Tribunal ordered under Rule 31 of the 2013 Regulations that certain information be specified and that unless it was the claim would be dismissed.   The specific information related to the claims made, requiring all and any facts she offers to prove that she was shown less favourable treatment on the grounds noted above, including all names, dates events including the names of any witnesses.

In attempted compliance with the order, the claimant prepared the specification documentation.   The Tribunal noted that there were considerable efforts made by the claimant to compile the document.   However, they relied upon the decision in Marcan Shipping (London) Ltd v Kefalas (2007) which outlined that the sanction within an unless order takes effect without any further order required.  Therefore, the case could be dismissed where the Tribunal finds that the order has not been complied with.  The Tribunal noted that the specification was ‘confused’ as well as a ‘hotchpotch’ and that it did not distinguish between each protected characteristic when purporting to specify facts and that it did not provide names, dates, events or details of all statements or actions alleged. The claimant, who it must be noted is self-representing, appealed the decision.

The first ground of appeal was that the Order made by the Tribunal had been incorrectly interpreted.   She argued that there was a distinction to be made between the Order to provide information and the Information Order Schedule.  The latter detailed the exact information required yet the EAT stated that they were to be taken together rather than distinguished.  Accordingly, this ground failed.

The second ground of appeal is that she had complied with the order in that she had outlined the claims relating to her protected characteristics.  The Tribunal did state that it would have been preferable for the claimant to outline the particular characteristics and then detail the aspects that she felt led to less favourable treatment.  The respondent argued that the ground was ‘perversity’, yet this was not accepted by the EAT, stating that the question of whether an order is complied with is a matter of law.   The fact that there is a lot of information in the specification about the dates on which particular things happened and the nature of the acts mean it would be wrong to say that there was total non-compliance.  When it comes to the specification being ‘inadequate’ then it would be for the Tribunal to perform a balancing exercise.  This was not done, and the Tribunal had erred in law in striking the claim out.

Practical Lessons

This case provides some food for thought for both practitioners and the Tribunal when it comes to dealing with litigants in person.  The EAT acknowledged the difficulties that can arise and this was clearly seen with the order made.   The claimant did make an attempt to comply in the best way she thought. It may not have been what the respondent or the Tribunal was expecting but the Tribunal must examine the documentation in a balanced way in determining whether the order has or has not been complied with.   Therefore, there should be some caution exercised before dismissing the claim where the claimant has made an attempt to comply.
https://www.gov.uk/employment-appeal-tribunal-decisions/miss-d-klukowska-v-bridge-of-weir-leather-company-ltd-ukeatpas-slash-0038-slash-18-slash-ss