Mohammed v Guy’s and St Thomas’ NHS Foundation Trust
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2023] EAT 16 |
| Court | Employment Appeal Tribunal |
2023 Jan 24; Feb 24
Judge
Industrial Relations - Employment tribunals - Unless order - Employee’s claim containing number of different complaints - Tribunal ordering claim to be struck out unless additional information provided - Claim struck out on failure to comply with order - Whether appropriate to make order that entire claim be struck out - Whether order should have been targeted at complaints in respect of which there was non-compliance - Relevant considerations -
The claimant submitted a claim to an employment tribunal alleging race and disability discrimination, including complaints of harassment and failure to make reasonable adjustments, against the respondent employer. At a case management hearing, an employment judge ordered the claimant to provide further and better particulars of the complaints, as identified in a draft list of issues. The claimant provided further details of the reasonable adjustments complaint but asserted that the other complaints were adequately particularised. The respondent unsuccessfully applied for an “unless order”, pursuant to rule 38 of the Employment Tribunals Rules of Procedure 2013F1, providing that, unless the claimant provided further details of her claim, it would be dismissed. Subsequently, the respondent successfully applied for an order requiring the claimant to provide further particulars, failing which consideration would be given to striking out the claim. The claimant then sought an extension of time, stating that she was seeking alternative legal representation. The respondent was granted a further order that, unless further particulars were provided, her claim would be struck out in its entirety. Delays followed and additional information was requested by the respondent, repeating the questions previously asked and seeking further details of the reasonable adjustments complaint, although no request was made in respect of the harassment complaint. Finally, two years after the initial claim, an employment judge made an order that, if the information requested was not provided by the stated date, the claim would be struck out without further order. When the claimant failed to provide further details, but sought reconsideration of the order, her claim was struck out in its entirety.
On an appeal by the claimant—
Held, allowing the appeal, that rule 38(1) of the Employment Tribunals Rules of Procedure 2013 distinguished between orders in respect of which non-compliance would result in the dismissal of the claim and those where it would result in the dismissal of part of the claim; that the “claim” meant the entirety of the complaints set out in the claim form, so that where there were a number of complaints in a claim form an unless order requiring particulars of the complaints could provide either that, if there was non-compliance, the claim would be struck out or only that the part of the claim in respect of which there was non-compliance would be struck out; that, before making an unless order, an employment judge had to consider the consequences of non-compliance and be satisfied that the strike out of the entire claim was a proportionate response to any material breach of the order, no matter how minor; that generally it would be proportionate to limit dismissal of a claim to any cause of action in respect of which there was a material failure to provide additional information; that an order dismissing the whole claim, in such circumstances, would generally only be appropriate where there had been serious ongoing default in compliance with the tribunal’s orders and where there had been express consideration of why such a draconian order was required; that, in the present case, the employment judge had erred in failing to refer to rule 38 and the authorities that stressed the care needed before making an order resulting in the entire claim being struck out, and had failed to take into account that any breach of the order would result in the whole claim being struck out, including the claim of harassment, where no request for particulars had been made, and the claims of direct race discrimination and failure to make reasonable adjustments, which had been substantially particularised; and that, accordingly, the claimant would be directed to finalise her answers to the draft list of issues in order for the case to return to the employment tribunal to be listed for a final hearing (post, paras 16, 22, 28–29, 32).
The following cases are referred to in the judgment:
Andreou v Lord Chancellor’s Department
DPP Law Ltd v Greenberg
Ijomah v Nottinghamshire Healthcare NHS Foundation Trust UKEAT/289/19 (unreported) 12 June 2020,
Johnson v Oldham Metropolitan Borough Council [
Royal Bank of Scotland v Abraham UKEAT/305/09 (unreported) 26 August 2009,
Uwhubetine v NHS Commissioning Board England UKEAT/264/18 (unreported) 23 April 2019,
Wentworth-Wood v Maritime Transport Ltd UKEAT/316/15 (unreported) 3 October 2016,
APPEAL from an employment judge sitting at London South
By a decision sent to the parties on 16 June 2020 an employment judge made an order that, unless the claimant, Ms A Mohammed, provided further details of her claim of discrimination against the respondent, Guy’s and St Thomas’ NHS Foundation Trust, by 8 July 2020 her claim would be dismissed without further order. On 22 July 2020 the tribunal informed the claimant that her claim had been struck out for failure to comply with that order. The claimant appealed against the order on the grounds, inter alia, that the employment tribunal had erred in law in ordering that the totality of the claim be struck out if she failed to comply with the order because the complaints were sufficiently particularised and the particular causes of action should have been considered.
The facts are stated in the judgment, post, paras 1–14.
Alice Mayhew KC (instructed directly through
Nathaniel Caiden (instructed by
The appeal tribunal took time for consideration.
24 February 2023. JUDGE JAMES TAYLER handed down the following judgment of the appeal tribunal.
Introduction1 This is an appeal against an unless order made by Employment Judge Siddall on 27 May 2020, sent to the parties on 16 June 2020:
“UNLESS by 4 p m 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.”
2 The claimant commenced employment with the respondent on 31 August 2003. From October 2012 the claimant worked as a clinical research sister in the research and development team at Guy’s and St Thomas’ Hospital. The claimant submitted a claim to the employment tribunal. She ticked the boxes asserting race and disability discrimination. A seven-page document entitled “Details of Claim” was attached to the claim form. The details of claim were drafted by solicitors instructed by the claimant. The factual allegations were set out with reasonable clarity. It was also clear that some of the treatment she complained about was asserted to be race discrimination. It was not so clear what she asserted was direct disability discrimination, harassment, discrimination because of something arising in consequence of disability and/or a failure to make reasonable adjustments. It should have been possible to clarify the complaints at a preliminary hearing for case management if both parties actively engaged in the process in accordance with the overriding objective, ideally without having to send the claimant away to provide additional information, with the inherent risk that the information produced would be considered inadequate by the respondent and/or the tribunal.
3 The matter was considered at a preliminary hearing for case management on 27 February 2019. The respondent had provided a draft list of issues with a number of questions highlighted. There was no significant consideration of the issues. Instead, the claimant was ordered to provide the respondent with further and better particulars of the claims identified in the draft list of issues, probably because both parties were represented at that time so it was not expected to be problematic.
4 The claimant’s solicitors provided further particulars on 13 March 2019, that were limited to providing more detail in respect of the claim of failure to make reasonable adjustments. They asserted that the other claims were adequately particularised. On 22 March 2019, the respondent made its first application for an unless order. The claimant’s solicitor responded asserting that sufficient particularisation had been provided. The application for an unless order was refused.
5 No further progress in clarifying the issues was made by the parties. On 13 September 2019, the respondent made a second application for an unless order. The employment tribunal responded on 13 November 2019, ordering that the claimant provide the further particulars requested in the questions inserted into the draft list of issues within seven days, failing which consideration would be given to striking out the claim.
6 On 20 November 2019, the claimant sought an extension of time stating that she was seeking alternative legal representation. On 7 January 2020, the respondent made a third application for an unless order:
“In light of the above, the respondent seeks an order that unless the claimant provide us with further and better particulars of her direct discrimination and discrimination arising claims and complies with...
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