Background:

The claimants appealed against a notice from the Tribunal stating their claims had been struck out for breaching an unless order. The basis of the claim was that their pay had been withheld when they were on strike and that deductions were not identified appropriately on their payslips.

The claimants were ordered to serve a schedule of loss and a list of all relevant documents in their possession and copies of those documents.  When they failed to comply the Judge ordered that they had to be done by 16th December 2020.  In February 2020 the claimants’ solicitor sent a spreadsheet with the names, hourly rates, daily rates, pay lost to strikes and their strike pay from the Union.  On 19th December 2020 a notice was sent stating that the claims had been struck out as each claimant was expected to serve a separate schedule.

Outcome:

The appeal was allowed by the EAT.   When a claim is being struck out for failure to comply with an order the Judge is deciding whether there was ‘material non-compliance’.   The EAT stated that careful consideration must be given before an unless order is made considering the draconian nature of it.   When one is made it should be drafted in such a way to determine easily if there has been compliance or not.   Furthermore, the unless order could be drafted in a way such that only part of a claim would be struck out for non-compliance rather than the whole claim.  Additionally, consideration should be given to unless orders requiring multiple elements and the effect when there is partial compliance.

The second stage of the process, as outlined by the EAT, is notice to the non-compliers. The EAT outlined that where there has been some attempt at compliance then the Tribunal should consider whether there ought to be an opportunity for submissions before making a decision.  The issue will be ‘material compliance’ and that test is qualitative rather than being quantitative.  Furthermore, the Tribunal should look at it from the perspective of facilitating the running of the case rather than being punitive with the use of the order.

The third and final stage of this process is the ‘relief from sanction’.  This requires the Tribunal to assess what is in the interests of justice.  The Tribunal should, as a result, look at the reasons for non-compliance, the seriousness of the lack of compliance, the prejudice on the other party and whether a fair trial was possible.  This would be a factual matter depending upon the particular circumstances.

In this case, the EAT stated that the original order was too ambiguous to be converted into an unless order.  It was not clear whether a single schedule of loss was required or separate schedules.   The EAT also found that the decision to order the unless order and to strike out the claims was a punitive approach rather than facilitative.  Therefore, the issue of whether there was material compliance was remitted back to the Tribunal with the stages outlined by the EAT to be taken into account.

Practical Guidance for Employers:

The EAT provides some very useful guidance on a Tribunal making ‘unless orders’ and their application.   The EAT makes it clear that there is a need for ‘material compliance’ but then states a number of other factors that must be considered when the Tribunal is considering striking out the claim.   The three stages outlined does provide a pathway for consideration from employers, legal representatives and the Tribunal when seeking or making an unless order and seeking to act upon it.

The full case is available here: 
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-a-minnoch-and-others-v-interservefm-ltd-and-others-2023-eat-35