Dr M Tattersall v Mersey and West Lancashire Teaching Hospitals NHS Trust
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Linden,Mrs Rachel Wheeldon,Mrs Elizabeth Williams |
| Court | Employment Appeal Tribunal |
| Published date | 01 March 2024 |
Judgment approved by the court for a hand down Tattersall v Mersey & Lancashire Hospitals
© EAT 2024 Page 1 [2024] EAT 24
Neutral Citation Number: [2024] EAT 24
Case No: EA-2021-000351-DXA
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 28 February 2024
Before :
THE HONOURABLE MR JUSTICE LINDEN
MRS RACHAEL WHEELDON
MRS ELIZABETH WILLIAMS
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Between :
DR M TATTERSALL Appellant
- and –
MERSEY AND WEST LANCASHIRE TEACHING HOSPITALS NHS TRUST
(FORMERLY SOUTHPORT & ORMSKIRK HOSPITAL NHS TRUST)
Respondent
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The Appellant did not attend
Simon Gorton KC (instructed by Weightmans LLP) for the Respondent
Hearing date: 22 February 2024
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JUDGMENT
Judgment approved by the court for a hand down Tattersall v Mersey & Lancashire Hospitals
© EAT 2024 Page 2 [2024] EAT 24
SUMMARY
PRACTICE AND PROCEDURE
The Employment Tribunal (“the ET”) made an unless order against the Appellant on 2 November
2020. On 15 January 2021 notice confirming that it had not been complied with, and that the Claim
had been struck out pursuant to the unless order, was issued by the ET pursuant to Rule 38(1) of
Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. On
5 April 2022, the Appellant’s application under Rule 38(2) for the order to be set aside was refused.
The appeal was against the decision to issue the notice of confirmation pursuant to Rule 38(1). The
central issues were whether the ET should have considered whether there was material compliance
with the unless order on the basis that any failure to comply had not impacted on the ability of the ET
to hold a fair trial of the Claim; and whether the Appellant ought to have been given an opportunity
to make representations.
Held: appeal dismissed. When deciding whether to issue a notice of confirmation pursuant to Rule
38(1) the issue for the ET is limited to whether the unless order has been “complied with”. A party
may argue that they have complied in substance, but Rule 38(1) does not provide scope to argue that
they have not complied but that this is not material. In the present case there had been total non-
compliance with the unless order and there was no basis on which the ET could have done anything
other than issue the notice. The Appellant had made written representations which were taken into
account and he had been treated fairly.
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