R Peposhi v Go Crisis Limited & Anor [2025] EAT 27

[2025] EAT 27Case No EA-2024-000127-LA
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 18 February 2025
Before
HER HONOUR JUDGE TUCKER
Between
MR R PEPOSHIAppellant- and –
Between
GO CRISIS LIMITEDRespondentWOVEN SOLUTIONS LTDRespondent
Ms Peposhi (McKenzie friend) for AppellantRad Kohanzad (instructed by Croner Group) for Respondent for The Second Respondent did not appear and was not representedHearing Hearing date: 18 February 2025
JUDGMENTSUMMARYPRACTICE & PROCEDUREAn Employment Judge erred in concluding that a Claimant had not complied with an Unless Order. The Order required the Claimant to take a number of steps within a particular time frame. Rather than focusing on whether those steps had been undertaken, the Judge considered whether the explanation provided by the Claimant for not rejoining a remote hearing was good enough.HER HONOUR JUDGE TUCKER:
[1]In this appeal, the Appellant, who was the Claimant before the Tribunal, seeks to appeal against the decision of Employment Judge Reindorf KC, sitting in the Watford Tribunal. The Judge’s decision was set out in a letter dated 21 December 2023. By that decision, the Judge confirmed that the Claimant’s claim had been dismissed pursuant to rule 38 of the Employment Tribunal Rules and Procedures 2013 because he had failed to comply with an Unless Order sent to the parties on 5 October 2023. In this judgment, I will refer to the Claimant as “the Appellant”, and to the Respondent to the appeal as “the Respondent”, as they were before the Employment Tribunal.[2]Although there had initially been some confusion as to which grounds of appeal had been allowed to proceed to this full appeal hearing, at the hearing today the Claimant confirmed that he sought to proceed with two only. The Claimant has been assisted today by his sister who has acted as a McKenzie Friend and who has made submissions on his behalf, with the Court’s permission. The two grounds of appeal which were advanced before me were as follows: 1) That the Judge had applied the incorrect legal test as to whether there had been material compliance with the Unless Order because she had adopted a qualitative rather than a quantitative approach, and, adopted a punitive analysis and approach rather than a facilitative one, as she was required to do by the authorities. 2) That the Judge had erred because she had resolved ambiguity in the Unless Order against the Claimant, being the person who was required to comply with it.

The facts

[3]The Claimant had made claims of disability discrimination against two Respondents. A final hearing took place in respect of those claims in the Watford Tribunal before a panel of an Employment Judge, Judge Reindorf KC and lay members E Gibson and Dr C Whitehouse. At the hearing, it was common ground between the parties that the Claimant was disabled by way of a hearing impairment: he has a complete loss of hearing in his left ear.[4]The hearing was conducted by CVP at the Reading Employment Tribunal. The case being listed for three days, but the hearing, in fact, only took place on two: 27 and 28 September 2023. It was common ground that a Preliminary Hearing had taken place some time before that, which had lasted about two hours, and the Claimant had participated in that by telephone.[5]The Tribunal was required to consider a number of issues regarding employment status and time limits. Before the Tribunal was a bundle consisting of some 389 pages of documents. The Tribunal recorded in paragraph 10 of its Reasons that the bundle was not agreed. The Respondent had provided witness statements from seven witnesses. The Claimant represented himself and the Respondent was represented by a consultant.[6]At the outset of the hearing, the Claimant had made a number of applications: an application to amend his claim and an application for an anonymity order. The Tribunal dismissed both applications. The Tribunal gave its decisions on the Claimant’s applications on the first day of the hearing and then gave full oral reasons on the morning of the second day of the hearing. The Claimant then made an application for a postponement. The circumstances in which that arose were set out in paragraphs 52 to 53 of the Tribunal’s Reasons:
“52. Having given its decisions on the Claimant’s privacy order and amendment applications (“the decisions”) on the first day of the hearing, the Tribunal delivered its full oral reasons for the decisions on the morning of the second day. The Claimant requested written reasons for the decisions so that he could consider whether to seek a reconsideration. The Employment Judge explained to him that it would take some days or weeks for written reasons to be sent to the parties, and that if he wished to seek a reconsideration of the decision not to make a privacy order it would seem more sensible for him to do so before the hearing was conducted and judgment given in public. The Claimant stated that he had not been able to follow the oral reasons because of his disability. He asked for a postponement of the hearing in order to receive the written reasons and take advice. 53. In his application for a postponement the Claimant stated that: 53.1. He was a lay person. 53.2. If he was not given time to fully comprehend the decisions his case would be prejudiced. 53.3. In particular, the failure of the Respondent’s management to investigate his complaint about a colleague taking a photo of him was part of his disability discrimination complaint, although it was not in the List of Issues set out in the Case Management Orders of 16 May 2023 and he did not recall having mentioned it at the Preliminary Hearing. 53.4. The reason why he had not been able to follow the oral reasons properly was because he needed to be able to lip read. It was easier to lip read face to face. He accepted that at the Preliminary Hearing he had not asked for an in person hearing and that at the beginning of the current hearing he had not mentioned that he was reliant on lip reading or that he would have any cognitive difficulties connected with his disability. 53.5. He said the difference between the Preliminary Hearing and the current hearing was that he was given the Case Management Orders in writing and the Employment Judge explained things to him in a way he could understand.” 53.1. He was a lay person. 53.2. If he was not given time to fully comprehend the decisions his case would be prejudiced. 53.3. In particular, the failure of the Respondent’s management to investigate his complaint about a colleague taking a photo of him was part of his disability discrimination complaint, although it was not in the List of Issues set out in the Case Management Orders of 16 May 2023 and he did not recall having mentioned it at the Preliminary Hearing. 53.4. The reason why he had not been able to follow the oral reasons properly was because he needed to be able to lip read. It was easier to lip read face to face. He accepted that at the Preliminary Hearing he had not asked for an in person hearing and that at the beginning of the current hearing he had not mentioned that he was reliant on lip reading or that he would have any cognitive difficulties connected with his disability. 53.5. He said the difference between the Preliminary Hearing and the current hearing was that he was given the Case Management Orders in writing and the Employment Judge explained things to him in a way he could understand.”
[7]The Respondent resisted the Claimant’s application for a postponement. In particular, it was submitted that the Claimant had not mentioned lip reading at a Preliminary Hearing, nor said at that hearing that an in-person hearing would be preferrable to one conducted by CVP. In addition, the Respondent submitted that the record of the Preliminary Hearing showed that the Judge at that hearing had enquired whether the Claimant needed any particular adjustments and that he had stated that he did not. The Employment Judge had said to him that if, in the meantime, he thought of any adjustments he would need to assist him with the final hearing, he should write to the Tribunal and the Respondents to set out what adjustments he needed. The Respondent noted that he had not done so in the five months since the Preliminary Hearing. The Respondent also submitted that the Claimant had had time to seek legal advice and had acted in an obstructive manner throughout the proceedings.[8]Having set out the relevant law in respect of applications for postponement, the Tribunal refused the application to postpone the final hearing. Under the heading of “Decision on the Claimant’s postponement application” the Tribunal set out its reasons from paragraphs 55 through to 57: “Decision on the Claimant’s postponement application55. For the following reasons we did not accept that the Claimant has any particular difficulty in absorbing information given to him orally because of his disability: 55.1. His job for the Respondent involved taking information on the telephone whilst inputting it onto a computer, and the Preliminary Hearing was held by telephone. These factors were inconsistent with his contention that he has difficulty with absorbing information provided orally, although the Tribunal noted that the Claimant’s disability impact statement says that he had some difficulties with using the phone when working for the Respondent. He did not bring this to our attention when making this application, and the Respondent maintains that he did not complain about it at the time. 55.2. He had not mentioned at the Preliminary Hearing that he had difficulties with comprehending information given orally or that he was reliant on lip reading. 55.3. It was clear from the Case Management Order of 16 May 2023 that the Claimant had been happy to proceed with the final hearing via CVP and use headphones. We accepted Ms Sodhi’s submission that the Claimant had said at the Preliminary Hearing that he had no preference as to whether the final hearing was conducted by CVP or in person. 55.4. He was invited by the Employment Judge at the Preliminary Hearing to write to the Tribunal if any further adjustments were required, but he did not do so. 55.5. In some respects, he had not paid attention to the written Case Management Order issued on 16 May 2023. For example, he had not engaged with the fact that the Order gave a deadline of 10 May for his amendment application. When he did make the application on 30 August 2023, he did not include in it the information carefully described in the Case Management Order. This indicated that having things in writing did not appear to make the difference he claimed. 55.6. At the outset of the current hearing he had been asked whether he needed any adjustments, and he said he did not. 55.7. He did not mention lip reading, difficulty taking notes or cognitive impairment until the Tribunal proposed to begin the substantive hearing on the morning of day two. 55.8. The Tribunal did not observe that the Claimant had any difficulty in understanding what was said to him or in responding. 55.9. He referred to no medical evidence supporting his assertion that he had difficulty with absorbing information given orally.56. The Tribunal did not accept that the Claimant is at any more of a disadvantage than any other unrepresented litigant. The Tribunal is mindful of the disadvantages faced by unrepresented litigants, as set out in Chapter 1 of the Equal Treatment Bench Book, and that it is required by the Overriding Objective to seek to ensure that there is equality of arms between the parties. We consider that we did so in this case by giving the Claimant adequate time and opportunity to state his position and by giving clear explanations of the process and our decisions as we proceeded. However, ultimately, we did not accept that his reasons for making the application were candid.57. Furthermore, the Claimant suggested no basis for a possible reconsideration application or appeal in relation to either of the decisions that we had made. The Tribunal does not, as a rule, postpone final hearings in order for litigants to receive written reasons for case management decisions made in the course of the hearing. We could see no reason to depart from that practice on this occasion. We were now almost halfway through the final hearing and had not commenced the substantive case. It was neither in the interests of justice nor fair to the Respondent to postpone it or delay it further.” 55.1. His job for the Respondent involved taking information on the telephone whilst inputting it onto a computer, and the Preliminary Hearing was held by telephone. These factors were inconsistent with his contention that he has difficulty with absorbing information provided orally, although the Tribunal noted that the Claimant’s disability impact statement says that he had some difficulties with using the phone when working for the Respondent. He did not bring this to our attention when making this application, and the Respondent maintains that he did not complain about it at the time. 55.2. He had not mentioned at the Preliminary Hearing that he had difficulties with comprehending information given orally or that he was reliant on lip reading. 55.3. It was clear from the Case Management Order of 16 May 2023 that the Claimant had been happy to proceed with the final hearing via CVP and use headphones. We accepted Ms Sodhi’s submission that the Claimant had said at the Preliminary Hearing that he had no preference as to whether the final hearing was conducted by CVP or in person. 55.4. He was invited by the Employment Judge at the Preliminary Hearing to write to the Tribunal if any further adjustments were required, but he did not do so. 55.5. In some respects, he had not paid attention to the written Case Management Order issued on 16 May 2023. For example, he had not engaged with the fact that the Order gave a deadline of 10 May for his amendment application. When he did make the application on 30 August 2023, he did not include in it the information carefully described in the Case Management Order. This indicated that having things in writing did not appear to make the difference he claimed. 55.6. At the outset of the current hearing he had been asked whether he needed any adjustments, and he said he did not. 55.7. He did not mention lip reading, difficulty taking notes or cognitive impairment until the Tribunal proposed to begin the substantive hearing on the morning of day two. 55.8. The Tribunal did not observe that the Claimant had any difficulty in understanding what was said to him or in responding. 55.9. He referred to no medical evidence supporting his assertion that he had difficulty with absorbing information given orally.[9]However, having refused the Claimant’s application for a postponement, the Tribunal subsequently postponed the hearing of its own motion and made an Unless Order, the terms of which I will return to below. The background to, and and the reasons why the Tribunal took that approach were set out by the Tribunal under the heading “Postponement of the Tribunal’s own motion” in paragraphs 58 through to 73 of the Judgment: Postponement of the Tribunal’s own motion 58. Whilst the Tribunal was deliberating on the Claimant’s postponement application, we were informed by the Tribunal Clerk that she had received information that the Claimant was having technical difficulties with his CVP connection. We were provided with a record of the Claimant’s telephone contact with the Tribunal centre, which showed that: 58.1. The Claimant had called at 11:17am asking for the hearing not to be restarted until he had established a connection, and had been provided with the phone number for the Tribunal’s IT Support team. 58.2. At 11:38am the Tribunal was informed that IT Support team had tried everything but could not fix the problem, and that the Claimant would not be able to attend the hearing. 59. The Tribunal Clerk informed us that she had tried to phone the Claimant on two mobile phone numbers that were held on file for him. The first number rang out and then gave an unobtainable tone, and the second number rang out. The Tribunal Clerk had also attempted to email the Claimant but had received no response and no bounce back. 60. At 12:16pm we reconvened the hearing since we had seen no evidence that the Claimant had attempted to explain the situation or to establish contact with the Tribunal in the past half an hour. We explained the developments to Ms Sodhi but we did not deliver our decision or reasons on the Claimant’s postponement application, since he was not present to hear it. 61. At 12:25pm the Claimant emailed the Tribunal Clerk stating that he had been on the telephone with IT Support for 30 minutes. He had seen that he had missed calls from an unknown number but had not wanted to terminate his call with IT Support in order to pick up the call. He wanted to know what to do next. 62. We adjourned again for Ms Sodhi to take instructions from her client and for the Tribunal to consider what action to take. 63. The Tribunal asked the Tribunal Clerk to attempt to telephone the Claimant again to ask him to attend the hearing by telephone to hear the decision on his postponement application and discuss the conduct of the remainder of the hearing. We considered that this would be a proportionate action to take, and that the Claimant would then have the lunch hour to try to fix his technical issues. 64. At 12:30pm the Tribunal Clerk attempted to telephone the mobile phone number given on the Claimant’s ET1. The call was picked up by the Claimant’s sister, who said that she would send the Claimant a message. 65. At 12:35pm the Claimant sent an email to the Tribunal Clerk which said “I requested a video call hearing because of my disability, so I am unable to continue just on the telephone. Can you please call me back so I can explain this?” 66. We asked the Tribunal Clerk to phone the Claimant on the second mobile phone number held on file and to ask him why he was not able to join the hearing on CVP via his mobile phone. She did so. The Claimant said that the screen on his mobile phone was too small for lip reading. He also said that on the first day of the hearing he had been using a friend’s laptop, but that was no longer available. He said that he did not have access to any other device. His own device was frozen. 67. At our request the Tribunal clerk spoke to the Claimant again to inform him that he was required to join by telephone to discuss how the hearing might be conducted. He told her that he was not able to phone in because he has got a disability, that it was too much information and he could not take it in, and that he was not able to understand what was being said and needed something in writing. 68. At 12:53pm the Claimant emailed the Tribunal Clerk as follows: As I explained on the phone, I cannot continue the hearing via telephone because it puts me at such a disadvantage due to my hearing disability. I have tried to explain this numerous times over the phone but there seems to be a miscommunication – I am not sure why as I am trying to put across how my hearing disability affects me. I cannot receive[d] all this new information via the telephone. You just explained that the hearing is not continuing but that the Judge wants to give me further reasons over the phone, which I have explained I am unable to comprehend over the telephone under all this stress due to my disability. 69. At 12:57pm we reconvened the hearing and explained the latest developments to Ms Sodhi. She pointed out that the Claimant had had no difficulty in participating in the Preliminary Hearing on 12 April 2023 by telephone, and that his job for the Respondent was telephone based. She said he had never raised any issue about having difficulty using the telephone. 70. In all circumstances the Tribunal considered it necessary to postpone the final hearing and to issue an Unless Order to the Claimant requiring him to provide a written explanation, with documentary evidence as available, to explain his inability to rejoin the hearing. The Unless Order will be sent separately. Our reasons were as follows: 70.1 The Claimant had made it clear that he did not intend to rejoin the hearing by any means. There was no indication that he intended to do so either on the afternoon of day 2 or on day 3. 70.2. It was neither appropriate nor fair either to proceed with the hearing in the Claimant’s absence or to strike out the claim, since he had given some explanation of his failure to rejoin the hearing. 70.3 Nonetheless the Tribunal was dissatisfied with the explanation thus far given by the Claimant. For the reasons given in our decision on the Claimant’s postponement application (above), we had not accepted that the Claimant suffered a disadvantage in participating by telephone or in receiving information given orally. 70.4 We conclude that the Claimant should be given an opportunity to produce an account of:(a) his claim that technical issues and/or unavailability of alternative devices prevented him from rejoining the hearing; and(b) his claim that for reasons connected with his disability he was unable to participate in the hearing by telephone. 71. Ms Sodhi accepted that the Tribunal was faced with no other option than to postpone the hearing. She stated that in due course the Respondent intended to seek a costs order against the Claimant. She also stated – and the Tribunal agreed – that it would be preferable for any future hearing in this case to be conducted in person. 72. Given the Claimant’s difficulties with his computer we considered it appropriate for the Tribunal to send this judgment and any other communications to him by post as well s by email. 73. Accordingly the hearing was postponed. If the Claimant complies with the Unless Order it is likely that a further Preliminary Hearing for case management will be required before the final hearing can be relisted.”[10]The Tribunal then made an Unless Order in the following terms:
“Unless by 4.00 p.m. on Thursday 12 October 2023, the Claimant sends to the Tribunal and to the first Respondent a written statement explaining why he was unable to rejoin the final hearing either by CVP or by telephone on 28 September 2023, accompanied by any documentary evidence in his possession or control which is relevant to this issue, the claim will stand dismissed without further order.”
[11]Subsequently, after time for compliance with that Order had passed, the Judge considered whether there had been compliance with the Unless Order. It does not appear that lay members were involved in that decision, nor does it appear that any hearing took place or that any further submissions were sought in respect of whether there had been material compliance with the Unless Order. The Judge concluded that there had not been compliance with the Unless Order and that, therefore, the claim was dismissed. The reasons for that were set out in the letter of 21 December from (ii) through to (x): (ii) Shortly before and just after 4pm on 12 October 2023 the Claimant sent to the Tribunal and the First Respondent three emails to which were attached various images and documents, including some medical evidence and a document entitled ‘Witness Statement – Fatjona Peposhi’. Fatjoni Peposhi is the Claimant’s sister. iii. In considering whether the Claimant had materially complied with the Unless Order or not I had regard to the judgment of the Employment Appeal Tribunal in Dr S Uwhubetine & anor v NHS Commission Board England & ors UKEAT/ 0264/18/JOJ. I directed myself that my approach should be facilitative rather than punitive and that any ambiguity should be resolved in favour of the Claimant, but that I should not go behind the terms of the Unless Order. iv. I did not consider the Claimant’s sister’s witness statement to amount to a written statement within the terms of the Unless Order. The requirement of the Unless Order was plainly a statement from the Claimant. Even if the Claimant could reasonably have thought that a written statement from another person would be sufficient to satisfy the Unless Order, his sister’s witness statement does not address the question asked in the Unless Order. v. I considered the various images attached to the Claimant’s emails of 12 October 2023. These included mobile phone call logs, WhatsApp exchanges between the Claimant and his sister on 28 September 2023, a computer repair receipt dated 12 October 2023 for £0.00 and a handwritten statement from a Konstantin Exposito-Gordon stating that the Claimant had borrowed his computer on 27 September 2023 but that he had required it back the following day. vi. I considered that the computer repair receipt and the handwritten statement may have tangentially touched upon the question of why the Claimant had not been able to rejoin the hearing by CVP, insofar as they partially evidenced his assertion that he had computer problems on 28 September. However none of the documents came close to explaining why the Claimant had been unable to rejoin the hearing by telephone. I bore in mind that the Claimant had been able to speak to the Tribunal Clerk and the Tribunal’s IT service by telephone on that date, and that he had previously appeared unrepresented at a Preliminary Hearing for case management by telephone. On 28 September 2023 the Tribunal Clerk had asked him to rejoin by telephone only to discuss the future conduct of the case in light of his purported computer problems, rather than to continue with the substantive hearing. vii. I considered whether the medical evidence attached to the Claimant’s emails substantiated the comments he had made in an email to the Tribunal clerk at 12:53pm on 28 September 2023, which were as follows:
“As I explained on the phone, I cannot continue the hearing via telephone because it puts me at such a disadvantage due to my hearing disability. I have tried to explain this numerous times over the phone but there seems to be a miscommunication – I am not sure why as I am trying to put across how my hearing disability affects me. I cannot receive all this new information via the telephone. You just explained that the hearing is not continuing but that the Judge wants to give me further reasons over the phone, which I have explained I am unable to comprehend over the telephone under all this stress due to my disability”. viii. The medical evidence consisted of a report from the London Borough of Hillingdon’s Team for Sensory Impairment dated 4 April 2007 and a letter from Hillingdon Hospital’s Paediatric Audiology Unit to the Claimant’s GP dated 5 March 2008. The report of 4 April 2007 contained the following comments which I considered to be of potential relevance: “Ramazan can hear the full range of sound in most situations however without binaural hearing he may have some difficulties following spoken language in the school environment. These may include: … Hearing when his good right ear is masked by a lot of near it e.g. a noisy heater or corridor”. “Ramazan may, at times, use lip reading to aid his comprehension of spoken language. A higher level of concentration will be required throughout the day and Ramazan may become tired”. “Ramazan's ability to discriminate speech in a quiet environment is not greatly affected by his hearing loss”. “This pupil can hear the full range of sounds perfectly in most situations”. “Allow time for Ramazan (Amie) to respond - it may take longer for him to process & understand what you have said”. ix. I concluded that this medical evidence did not substantiate the Claimant’s assertion that joining the hearing by telephone would have put him at a disadvantage due to his hearing loss, whether combined with “all this stress” or otherwise. I was mindful that the Claimant had been conducting the hearing in a quiet room and had used headphones. x. I therefore found that the material provided by the Claimant did not address the question of why he had refused to rejoin the hearing on 28 September 2023 by telephone, and that he had not materially complied with the Unless Order. Therefore the claim stands dismissed.”
[12]After the Unless Order had been made, on 12 October, the Claimant sent to the Tribunal an email. There was some difficulty with the layout of the email in that the first copy of it appeared to be blank. However, at15.49 a legible email was sent by the Claimant to the Tribunal on 12 October. The email itself set out much of that which the Claimant had said before within the Tribunal hearing about why he believed he was not able to participate in the hearing. He attached to that email a number of documents: what he described as, an IT diagnostic report, a handwritten statement from an induvial called Konrad Exposito-Gordon, whom he stated had lent him a laptop, a statement from his sister regarding missed calls she received, the call log from his sister’s phone, his sister’s WhatsApp messages to him, and the medical evidence that he sought to rely upon.[13]Those documents appear in the appeal bundle. The IT report is a document dated 12 October 2023 and states that the repair receipt was for “build up computer”, “power on no display”, “graphic card or memory faulty”, with an invoice setting out: “£Call.00”. The letter was a letter from an individual, Mr Exposito-Gordon, again dated 12 October 2023, which stated that the Claimant had asked if he could borrow his laptop on 26 September 2023, that Mr Exposito-Gordon had agreed but needed it back on the next day, 27 September. The short statement contained a statement of truth. There were then screenshots showing a number of calls with no caller ID on 28 September 2023.[14]The medical evidence dated from 2008, when the Claimant was a child. It confirmed that he had a complete loss of hearing in one ear. The Claimant had also attached documents from his school which were entitled “SEN learning support services” and set out adjustments or proposed alterations to the way that teaching staff should work with the Claimant to ensure that he was not adversely affected by unilateral hearing loss. The statement from the Claimant’s sister confirmed that which was recorded in the Tribunal’s Judgment regarding her contact with the Tribunal’s clerk on 28 September 2023.

The relevant legal principles

[15]Rule 38 of the Employment Tribunal Rules of Procedure 2013 provides as follows:
“Unless orders 38. —(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations. (3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.”
[16]Authorities establish that the making of an Unless Order is an important part of a Tribunal’s procedural armoury, albeit it one that should not be used lightly. See the decision Thind v Salvesen Logistics LtdUKEAT/0487, (13 January 2010).[17]More recently, the relevant principles of law regarding the making of Unless Orders have been helpfully summarised by HHJ Tayler in the decision of Mr A Minnoch v Interserve FM Ltd and Others [2023] EAT 35, particularly at paragraphs 31-35. Having reviewed and considered relevant authorities,

Judge Tayler set out a number of principles as follows:

“Drawing the threads together 31. The caution that these judgments express about the use of unless orders derives, in part, from the highly unusual feature of such orders in that they involve a degree of prejudgment. At stage 1, when deciding to make the order, a judge is essentially deciding that if there is material non–compliance, whatever the reason, the claim will automatically be struck out, subject only to the possibility of relief from sanction. Judges who make unless orders sometimes come to regret them as things can take an unexpected turn, resulting in extensive delay and extra work, giving the opportunity to repent at leisure an unless order made in haste. 32. Appeals concerning unless orders are too large a part of the diet of the EAT. It may be helpful to draw the threads together, although not with the aim of discouraging reading the judgments I have referred to above for their full subtlety. 33. The following seem to me to be the key points: Stage 1 – Making an unless order 33.1. care should be taken in making an unless order because of the draconian consequence of material non–compliance – unless orders are not just another type of workaday case management order 33.2. it is rarely a good idea to convert a previous general case management order into an unless order – careful consideration should be given to whether it will be fit for purpose as an unless order 33.3. an unless order should be drafted so that it will be easy to determine whether there has, or has not, been material compliance 33.4. an unless order should be drafted so that the consequence of material non-compliance is clear – it need not necessarily result in the strike out of the entire claim – an unless order can be drafted so that failure to comply with it, or part of it, results in part of the claim being struck out 33.5. although not specifically provided for by Rule 38 ET Rules, an order could provide for a lesser sanction than strike out on non-compliance, such as a claimant being limited to reliance on the material set out in the claim form if additional information is not provided 33.6. if a party is required to do more than one thing by an unless order, careful thought should be given to the consequence of partial compliance – particular care should be taken before making an order that will result in the dismissal of all claims if there is anything that falls short of full material compliance with all parts of the order Stage 2 – Giving notice of non-compliance 33.7. at this stage the employment tribunal is giving notice of whether there has been compliance – it is not concerned with revisiting the terms of the order 33.8. particularly if there has been some asserted attempt at compliance, careful thought should be given to whether an opportunity should be given for submissions, in writing or at a hearing, before the decision is taken 33.9. the question is whether there has been material compliance 33.10. the test is qualitative rather than quantitative 33.11. the approach should be facilitative rather than punitive 33.12. any ambiguity in the drafting of the order should be resolved in favour of the party who was required to comply 33.13. this involves a broad assessment of what is in the interest of justice 33.14. the factors which may be material to that assessment will vary considerably according to the circumstances of the case 33.15. they generally include: 33.15.1. the reason for the default – in particular whether it was deliberate 33.15.2. the seriousness of the default 33.15.3. prejudice to the other party 33.15.4. whether a fair trial remains possible 33.16. each case will depend on its own facts Analysis 34. This appeal concerns stage 2, deciding whether to give notice that the claim has been struck out. EJ Burns did not direct himself to the law, in particular to the need to consider whether there was material non-compliance. The original case management order was not well suited to conversion to an unless order. On the core issue, the order was ambiguous as to whether a single schedule for all of the claimants would suffice, or whether a separate schedule for each claimant was required. I do not agree with EJ Burns’ analysis that the order was clear as “a matter of simple grammar”
. The importance he ascribed to the difference between the information being set out in a separate schedule for each claimant as opposed to a single spreadsheet for all claimants, gave form precedence over substance to an excessive degree, as did the requirement for the schedules to be in the “lay-out” of a “reasonable schedule of loss as understood in professional employment tribunal practice”. In complex employment tribunal claims a schedule of loss that would be familiar to a practitioner dealing with substantial personal injury claims may be appropriate, but this was a case of a group of employees all of whom were claiming a few day’s pay. The format was not of any great significance if the figures were given. I fail to see how EJ Burns could have seriously doubted that the figures for “pay lost to strike” were the sums claimed by the claimants. The total sum claimed for all of the claimants together was a little over £15,000. This claim did not call for highly polished schedules of loss as might be appropriate in high value personal injury or commercial claims. 35. The employment judge made a criticism that the “spreadsheet is also missing basic information before it does not show the sums the Claimants admit they received from the Respondent in relation to the relevant periods”. The sums that the claimants received as ex gratia payments were not the same s the strike pay deducted. It was not obvious that these ex gratia payments stood to be deducted from their claims. While, that was the assertion of the respondent, I do not consider that it is common practice to guess what sums a respondent will seek to set off and set them out in the schedule of loss – were that the case there would be little purpose left for a counter-schedule. The order required that the claimants set out the sums they received from the Union, but not from the respondent. I cannot see that there is substance in the criticism of EJ Burns that the sums paid by the respondent should be set out in the schedules produced by each claimant so that the respondent could “understand what evidence it has to adduce” about the monies it paid. The respondent knew what it had paid as an ex gratia sum to each claimant and had already set out the specific sums in their ET3 response.” 33.1. care should be taken in making an unless order because of the draconian consequence of material non–compliance – unless orders are not just another type of workaday case management order 33.2. it is rarely a good idea to convert a previous general case management order into an unless order – careful consideration should be given to whether it will be fit for purpose as an unless order 33.3. an unless order should be drafted so that it will be easy to determine whether there has, or has not, been material compliance 33.4. an unless order should be drafted so that the consequence of material non-compliance is clear – it need not necessarily result in the strike out of the entire claim – an unless order can be drafted so that failure to comply with it, or part of it, results in part of the claim being struck out 33.5. although not specifically provided for by Rule 38 ET Rules, an order could provide for a lesser sanction than strike out on non-compliance, such as a claimant being limited to reliance on the material set out in the claim form if additional information is not provided 33.6. if a party is required to do more than one thing by an unless order, careful thought should be given to the consequence of partial compliance – particular care should be taken before making an order that will result in the dismissal of all claims if there is anything that falls short of full material compliance with all parts of the order 33.7. at this stage the employment tribunal is giving notice of whether there has been compliance – it is not concerned with revisiting the terms of the order 33.8. particularly if there has been some asserted attempt at compliance, careful thought should be given to whether an opportunity should be given for submissions, in writing or at a hearing, before the decision is taken 33.9. the question is whether there has been material compliance 33.10. the test is qualitative rather than quantitative 33.11. the approach should be facilitative rather than punitive 33.12. any ambiguity in the drafting of the order should be resolved in favour of the party who was required to comply 33.13. this involves a broad assessment of what is in the interest of justice 33.14. the factors which may be material to that assessment will vary considerably according to the circumstances of the case 33.15. they generally include: 33.15.1. the reason for the default – in particular whether it was deliberate 33.15.2. the seriousness of the default 33.15.3. prejudice to the other party 33.15.4. whether a fair trial remains possible 33.16. each case will depend on its own facts[18]In particular, in paragraphs 33.1 to 6, Judge Tayler focused on the need for precision in drafting of Unless Orders. That reflected earlier in authorities such as the decision of HHJ Richardson in Mace v Ponders End International Ltd[2014] IRLR 697. In that case, Judge Richardson had stated that in drafting Unless Orders it is good practice to spell out what the party concerned is actually required to do by the Order.[19]More recently, in 2022 in the case of Dykes v Whitbread Group [2022] EAT 13, the Scottish EAT held, Lord Fairley presiding, stated that claims should only be struck out pursuant to an Unless Order when it could be said without doubt, and on a strict reading, that there had been material non-compliance with the requirements of the Order. I refer in particular to paragraph 20 of that judgment:
“20. As was pointed out in McCarron v. Road Chef Motorways & Others UKEAT/0268/18, a claim should only be dismissed for non-compliance with an Unless Order when it can be said without doubt that, on a strict reading of the Order, there has indeed been such non-compliance. That non-compliance must take the form of a failure to comply with the letter of the Order and not merely the spirit of it, even if that spirit was generally understood. An Unless Order should not be construed expansively against the party required to comply with it.”
[20]Further, it is, in my judgment, established that any ambiguity in the drafting of an Unless Order, should not be held against the person who is required to comply with it. I refer both to the principle set out by Judge Tayler and also to that stated by HHJ Stacey, as she then was, in Amey Services Ltd v Mr S Cunning and Others UKEAT/0009/18. In that case, Judge Stacey stated that a Respondent could not take advantage of infelicitous wording in such an Order in order to obtain a strike out of a claim for non-compliance where the meaning of what was required was unclear.[21]In McCarron v Road Chef Motorways Limited UKEAT/0268/18, (referred to by Lord Fairley in Dykes v Whitbread Group) it was held that where an Order had provided that a party should file any medical evidence upon which they wished to rely, there could not properly be said to be non-compliance with the Order when no evidence was filed, because, on the proper construction of that Order, the Order required the Claimant only to file evidence if she wished to do so. If she did not wish to do so and had not filed any, there was not, held the EAT, any non-compliance.[22]Unless Orders are useful case management tools and orders to ensure that the Tribunal’s orders are complied with. They are, however, draconian in nature and can lead to the strike out of an entire claim, without further consideration. They are not, therefore, regular case management orders. Care should, in my judgment, be taken not to use, deliberately or inadvertently, Unless Orders as a means of disposing of what may be considered to be a weak or unmeritorious claim. They should not, in my judgment, be used to address issues such as the strength or weaknesses of a claim, where matters such as that can more properly be addressed through other case management tools available, including the making of a Deposit Order or a Notice to show cause why a claim should not be struck out, if there are concerns about a litigant’s conduct. Similarly, they are, in my judgment, blunt, if not inappropriate, tools to use to establish issues relating to honesty or credibility of explanations for steps taken, or not taken, or a parties’ conduct in litigation.

Submissions

[23]In this matter, the Claimant submitted that, viewed objectively, he had complied with the[24]In respect of the second ground of appeal, it was submitted that the Order did not expressly say who any statement should be from. In addition, it was submitted that the requirements of the Order that the Claimant should file a statement explaining why he was unable to rejoin the final hearing was, fairly, a matter which could be interpreted in different ways. The Claimant had, it was submitted, legitimately understood it to require him to explain his own inability on the day of the hearing to rejoin. It was submitted that the decision of the Judge in subparagraphs 6 and 9 of her Judgment (set out above) reflected the possible ambiguity in the Order whereby the Judge set out alternative approaches to the consideration of that which had been submitted.[25]It was also submitted that there was ambiguity in respect of what the purpose of rejoining the hearing was, whether or not it was, for example, to rejoin a full hearing or whether or not it was to rejoin only to discuss future conduct. It was submitted that one alternative interpretation was that the Claimant only had to show that he was unable to join either via video or via telephone, not both. It was submitted that the phrase “unable to rejoin” was understood legitimately by the Claimant to be a direction that his statement and documents should address the question of how his disability affected his ability to participate as opposed to his ability to physically rejoin the hearing, particularly if what he had to do was explain why he could not rejoin the substantive hearing when, on his case, he could not participate fairly because he could not properly hear in order to communicate and understand.[26]The Respondent contended that the decision of whether or not there had been material compliance or non-compliance with the Unless Order was a matter for the Employment Judge and that the Judge’s finding could not be disturbed unless the test for perversity was made out, which in this case it was submitted it could not be.[27]I was asked to carefully consider the background context against which the Unless Order was made, in particular, paragraphs 70 to 71 of the Tribunal’s decision. That set out that the Tribunal (i.e., the panel of three) had given consideration to whether or not the claim should or could be struck out, but, had concluded that it could not be because the Claimant had given some explanation for his absence from the hearing. Further, I was invited to consider that the finding of the Tribunal set out in paragraph 70.3 that the Claimant was not disadvantaged because of his hearing impairment reflected conclusions set out by the Tribunal at paragraph 55.1, and that was a determination with which this Tribunal should not interfere in the absence of a finding of perversity.[28]I was invited to consider that what had really happened in the case was that it was clear that the case was not going in the Claimant’s favour and that the Claimant had then chosen to absent himself from it, and, that for the reasons set out in paragraphs 70 to 71, although the Tribunal considered the possibility of strike out, before making any decision on that matter it had given the Claimant one final opportunity to explain his absence.[29]It was submitted that it was trite law that Tribunal has a responsibility to make reasonable adjustments for parties, witnesses, and litigants who live with disability, but that that did not extend to enabling them to dictate unreasonably how a hearing should be conducted or how they should participate within it.[30]In respect of ground 2, it was submitted that the Judge was entitled to find that the Claimant was in breach of the Unless Order by not providing a statement himself, and, that in any event, the Judge was entitled to find that the documents provided did not come close to explaining why the Claimant had been unable, properly to rejoin the hearing by telephone. It was submitted that, ultimately, whether or not there was compliance with the Order was a judgment call for the Tribunal which was not open to challenge, even if one were to resolve any ambiguity in the Unless Order in the Claimant’s favour. It was submitted that the phrase “unable to” meant why the Claimant was unable, i.e. physically not able, as opposed to not willing, to rejoin or attend the hearing.[31]It was submitted that the Judge knew well what was required by the Order and that a degree of latitude should be afforded to her in her interpretation of her own Order. Further, that the Judge had correctly directed herself on the law and set out adequate reasons for her decision, and that in those circumstances this Tribunal should be slow to interfere.

Conclusions

[32]In my judgment, the Unless Order required the Claimant to do the following by 4.00 p.m. on 12 October 2023: 1) To send a written statement to the Tribunal. 2) In a statement, explain why he was unable to rejoin the final hearing either by CVP or by telephone on 28 September 2023. 3) To send with that statement any documentary evidence in his possession or control which was relevant to that issue.[33]It was common ground that that which the Claimant did was done within the relevant timeframe. In addition, he sent to the Tribunal a witness statement (from his sister). He also sent an email in which he set out his account of what had occurred on 28 September and why he had not rejoined the hearing. The documents which he attached to his email (as the Judge accepted) were relevant, even if only tangentially, to the issue of why he did not attend the hearing.[34]I consider that that which the Claimant did, objectively meet the requirements of the Unless Order that was made. It is unarguable that he sent a written statement to the Tribunal; similarly, that he sent documentary evidence in his possession or control relevant to his ability to rejoin the final hearing, those documents addressing his hearing impediment and its impact upon him.[35]Where there may have been ambiguity was in relation to the phrase “why he was unable to rejoin the final hearing either by CVP or by telephone on 28 September 2023.” Although not the interpretation that I would adopt of the Unless Order, that there was some merit in the suggestion that the Unless Order could have been construed and understood to have required the Claimant only to set out in a statement why he was either unable to join by CVP or unable to join by telephone. However, even if it required him to do both, in my judgment there is some ambiguity, in the context of what had occurred, in the words “unable to rejoin the final hearing.” In the judgment, at paragraph 70.4 of its Judgment (paragraph 11 above), the Tribunal set out that what it had intended to do by the Order was to give the Claimant an opportunity to provide an account of two things. First, his claim/assertion that the technical issues and/or unavailability of alternative devices prevented him from rejoining the hearing, and, secondly, his claim/assertion that, for reasons connected with his disability, he was unable to participate in the hearing by telephone.[36]I disagreed with the submission made on behalf of the Respondent that there was no ambiguity at all in the Order. I also disagreed with the submission made that the Judge should be given a degree of latitude in respect of the interpretation of her own Order, because she knew what was intended by it.[37]When considering the question of compliance with an Unless Order, the issue must be determined objectively: what, objectively, did the Order require the party to do; what have they done; and, does that which they have done meet the requirements of the Order. The purpose of the Order is to ensure compliance with the Tribunal’s directions. Therefore, it is important that the person who is required to comply must understand clearly and unambiguously what it is that they are required to do. Ambiguity should be resolved in favour of the complying party, not in favour of the interpretation intended or meant to be conveyed by the author of the Order.[38]In this instance, the terms of the Unless Order did not require a statement to be in any particular form, nor indeed from any particular person. The Claimant was asked to set out why he was not able to re-join the hearing. The Order did not require him to prove why he was not able to join to any particular standard, nor did it specify whether he was required to identify and explain the two potential impediments to doing so identified at the end of paragraph 35 above (technical difficulties and hearing impediment). The Claimant provided a statement, and he stated why was not able to join from his perspective because of his disability. That may or may not have been a ‘good enough’ or ‘valid’ explanation, but the Order only required him to provide an explanation, not to provide one to a particular standard, nor a valid explanation. He simply had to explain why he could not join. (See the terms of the Order set out in paragraph 10 above).[39]The Judge clearly set out an accurate self-direction. Despite that self-direction, in my judgment, she fell into error by then proceeding to adopt a qualitative analysis, contrary to that direction. Her conclusion was that the Claimant had not established, to her satisfaction, a good or valid reason why he had not been able to re-join the hearing. Objectively, he was required to provide an explanation (that it appears, was also the intention behind the[40]I also add, however, that the decision to make an Unless Order had been made by a panel of three members of the Tribunal: a Judge sitting with two lay members. The Judge determined the question of compliance on her own and without hearing submissions on the question of compliance, or, inviting the parties to consider whether a further hearing was required or whether they wished to lodge any further submissions. I consider that it would have been better to have considered whether or not the decision should have been made by the Tribunal as originally constituted. I also consider that the question of whether further submissions should have been invited, and, whether that should have taken place at or without a hearing.[41]I have some sympathy with the Tribunal’s position. At the final hearing they were clearly concerned about the Claimant’s conduct and may have had concerns about the accuracy of some of the information he gave. They had clearly felt that he was not assisting at the Tribunal.[42]The Tribunal did not, however, and by way of example, address those matters through some of the other tools available to them, for example, by issuing a notice to show cause why the claim should not be struck out, or using other case management powers. Instead, the Tribunal chose to make an Unless Order but then, in my judgment, fell into error by evaluating the compliance with that Order in terms of the adequacy of the explanation given, rather than addressing the issue of whether there had been compliance with the terms of the Unless Order. Issues relating to conduct of proceedings such as the concerns the Tribunal had in this case are not easily dealt with through an Unless Order. The Tribunal were, in truth, looking for evidence of a genuine reason why the Claimant behaved as he did. Inevitably, that meant that the evaluation of compliance with the Unless Order (even if it had been drafted precisely to show that that was what the Tribunal had been seeking) was going to be qualitative. A number of consequences flow from that. First, the Claimant needed to know that that was what he would be judged on: the validity of his explanation, not the fact of it. Secondly, it was important to consider whether fairness demanded the opportunity to be given for further submissions before a decision was made. Thirdly, there needed to be an explanation of why the decision was taken by the Judge alone rather than the full Tribunal.[43]On the facts, however, and given how the Order was drafted I consider that in this case, the Judge proceeded to determine the issue on the quality of compliance, straying into areas of the Claimant’s conduct which would have been better addressed through other case management powers which a Tribunal has, not through an erroneous qualitative assessment of compliance with this Unless Order.[44]That addresses the issue on the appeal. The following matters were not matters which I was required to determine in order to determine the appeal. However, I make the following observations, mindful of the overriding objective and in particular the requirements upon a Tribunal to ensure, so far as possible, that parties are on an equal footing.[45]Tribunals and many litigants are now well accustomed to conducting litigation through remote means via CVP or Teams. The apparently undisputed evidence before the Tribunal, was that in order to participate in a hearing by CVP the Claimant had had to borrow a laptop. The hearing involved a case where there were some 400 pages of documents which the Claimant had to consider and work with. Inequality of arms extends to many aspects of a litigant’s ability to participate in hearings including, in my judgment, to their access to technology so as to be able to participate in a hearing on an equal footing with others.[46]Questions which it may be important to consider when making directions for remote hearings may include whether or not, in remote hearings, an individual is able to, for example, see the Tribunal and witnesses, and simultaneously read documents and how that will be done. Will they, for example, have access to more than one screen? At a more basic level, are they able only to join using a mobile phone? In this case, additional considerations arose because of the Claimant’s hearing impediment. Tribunals must ensure that matters such as this are addressed during the case management stages of litigation.

Order

he had filed an email and a statement from his sister. Both documents addressed what had occurred on the day and why he was not able to join the hearing. In addition, he had filed documents which were relevant to that issue. He did both of those things within the time set out by the Order. In particular, the documents that he provided showed that he had difficulties with his laptop, that he eventually did not have access to a laptop and that he could not take telephone calls from the clerk at one point. It was submitted that the Judge acknowledged in her decision that the documents that had been submitted partially evidenced that which the Claimant had said about the “IT difficulties” he said that he had experienced. The medical evidence supported, in the submission of the Claimant, the fact that he had a hearing impediment, and that it affected his ability to participate in the hearing and to process of information. The material he sent to the Tribunal, it was submitted, was the evidence which was “within his control”. He filed it; therefore, he had complied with the Order. Order: to allow an opportunity for an account to be given). The Judge however, in my judgment, went on to consider whether the explanation/ account given, was one which substantiated the Claimant’s non attendance. In other words, whether it was a good enough, or valid account. The Judge considered that it was not a valid one. That, however, what the Order required. For those reasons, I allow both grounds of appeal.