Mr M Leonard and others v BT plc: 4106707/2020 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106707/2020, 4106738/2020, 4105537/2020
Between
Mr M Leonard and othersClaimantBT PLCRespondent
Before
Employment Judge R GallMr J Boyd (instructed by Barrister) for claimantInstructed by DWF, Solicitors for claimantDate 1 September 2021
JUDGMENT
[1]The Judgment of the Tribunal is that a) the application by the claimants that the claims are combined is refused as sought. The claims brought by Mr Leonard and by Mr Ferguson are combined. The claim brought by Mr Baird is not combined with the other claims and will proceed at present as a separate claim. b) the application by the respondents for an Unless Order to be granted in the case brought by Mr Leonard and that brought by Mr Baird is granted. Those Unless Orders are detailed below. c) The claim of discrimination brought by Mr Leonard, the protected characteristic being disability, is noted as withdrawn. Having been withdrawn by the claimant, the claim of discrimination is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. d) The hearing in the case brought by Mr Ferguson which is scheduled for 19 and 20 May 2021 is postponed. e) A Preliminary Hearing for Case Management purposes is set down for 9 AM on Wednesday 7 July in the combined cases of Mr Leonard and Mr Ferguson. UNLESS ORDERS[2]The following Orders are made in relation to the claims brought by Mr Leonard:- By 17 June 2021 Mr Leonard will detail to both the Employment Tribunal, and the respondents:-(1) Why it is that he says his dismissal was unfair in terms of the Employment Rights Act 1996.(2) Which provisions of the ACAS Code of Practice it is that he alleges the respondents have failed to comply with and what those failures are said to have been.(3) What it is that he asks the Employment Tribunal to award him if he succeeds in his claim of unfair dismissal.(4) If he seeks a financial award, in addition to specifying that and the amount he seeks, he will set out how the sum which he seeks is calculated.(5) Whether he has obtained a new job since dismissal by the respondents and, if so, when he started that new job and what income he has received from it.(6) If he has not obtained a new job since dismissal, he will provide details of any applications made by him trying to find a new job and also whether he obtained an interview for any such possible new job.(7) Any government benefit he has received since his employment with the respondents ended. UNLESS PARAGRAPHS 2 (1) – (7) OF THESE ORDERS ARE COMPLIED WITH BY 17 JUNE 2021 THE CLAIM OF BROUGHT BY MR LEONARD SHALL BE DISMISSED ON THE DATE OF NON-COMPLIANCE WITHOUT FURTHER ORDER.[3]The following Orders are made in relation to the claims brought by Mr Baird:- By 3 June 2021 Mr Baird will detail to both the Employment Tribunal and the respondents:-(1) The basis on which he says he has sufficient qualifying service with the respondents as an employee, enabling the Employment Tribunal to be able to consider his claim of unfair dismissal.(2) The date he says his employment with the respondents commenced and when he says it ended. UNLESS PARAGRAPHS 3 (1) and (2) OF THESE ORDERS ARE COMPLIED WITH BY 3 JUNE 2021 THE CLAIM OF BROUGHT BY MR BAIRD SHALL BE DISMISSED ON THE DATE OF NON-COMPLIANCE WITHOUT FURTHER[1]You may make an application under Rule 29 for the above Orders to be varied, suspended or set aside. Your application should set out the reason why you say that the Order should be varied, suspended or set aside. You must confirm when making the application that you have copied it to the other party(ies) and notified them that they should provide the Tribunal with any objections to the application as soon as possible.[2]If any aspect of these orders is not complied with, the Tribunal may make an Order under Rule 76(2) for expenses or preparation time against the party in default.
REASONS
[1]This Preliminary Hearing (“PH”) took place by Cloud Video Platform (CVP) on 6 May 2021. It was not practicable to hold an in-person PH. Parties consented to the Preliminary Hearing proceeding by Cloud Video Platform (CVP).[2]The respondents produced a file of documents (“the file”) for this hearing. It was very helpful that this was bookmarked. That enabled easy navigation of the file both in preparation for the hearing and in the hearing itself.[3]Three claimants, Mr Leonard, Mr Baird and Mr Ferguson have brought claims against the respondents which are said to arise from similar circumstances. A PH was held for case management purposes on 14 January 2021 before Employment Judge Strain. Mr Leonard and Mr Blair were present on that occasion. Mr Ferguson was not present.[4]At the PH on 14 January Orders were made. Those required Mr Leonard and Mr Baird to respond by supplying information by specified dates. This PH was set down at that time. There were two purposes in it being set down. Firstly, the question of whether the Tribunal had jurisdiction to hear the claim of unfair dismissal brought by Mr Baird was to be determined. Secondly, whether the 3 claims were to be combined and heard together was to be determined.[5]Between the PH in January and this PH there had been developments. Mr Leonard had confirmed that he wished to withdraw his claim of disability discrimination. That leaves his claim of unfair dismissal as being the one he wishes to make.[6]At this PH I raised this with Mr Leonard, seeking confirmation that he did indeed wish to withdraw his claim of discrimination. I explained that, if withdrawn, that ground of claim would be dismissed, bringing it to an end. I was conscious that Mr Leonard has referred to learning difficulties on his part. I kept that in mind throughout this PH. I explained to Mr Leonard that he should ask if he did not follow something which was said or wished a further explanation of anything. He confirmed he would do that. He was clear that he wished to withdraw the allegation of discrimination and was aware that element of claim would come to an end. Judgment dismissing that ground of claim is issued in the terms above in those circumstances.[7]In the lead up to this PH, as occurs in cases to be conducted using CVP, the Clerk to the Tribunals contacted parties to carry out a trial to try to ensure that any IT issues were ironed out before the CVP hearing itself. On contacting Mr Baird, the Clerk was informed by Mr Baird that he could not participate in this PH as he could not obtain time off work for that purpose. The Clerk highlighted to Mr Baird the possibility that he might contact the Employment Tribunal to seek a postponement of the case. No such application was submitted however prior to the time set down for this PH. Mr Baird did not appear on the CVP video call for this hearing. There was no contact from him with the Employment Tribunal to the knowledge of the Clerk on the day of this PH. Mr Leonard and Mr Ferguson had no knowledge of Mr Baird’s circumstances or intentions in relation to the claim.[8]As mentioned above, at the PH in January, an Order was made in relation to the claim brought by Mr Baird. He makes a claim of unfair dismissal. From his claim form, and also as confirmed by the respondents, he does not have over 2 years of service. The Order was that Mr Baird set out why he contended that he has sufficient service for the Tribunal to have jurisdiction to hear his unfair dismissal claim. Mr Baird had replied. That reply was dated 15 April 2021 and appeared at page 115 of the file.[9]In his reply, Mr Baird again accepted that he had less than 2 years’ service as an employee of the respondents. He appeared to have been with the respondents as an agency worker for a period prior to becoming an employee of theirs. He did not however explain why it was that he said he was able to pursue a claim of unfair dismissal. He appeared to be maintaining that employees of the respondents ought to have recruited him as an employee at a particular time and that, had they done so, he would have had 2 years’ service at time of his dismissal. His reply to the Order did not therefore reply specifically to the Order by stating the basis on which he said he was able to pursue a claim of unfair dismissal, bearing in mind his apparent length of service as an employee of the respondents.[10]In addition, in the Order all three claimants were required to lodge with the Tribunal a written submission setting out why the 3 claims should be heard together and what facts and circumstances the 3 claims had in common.[11]There had been no reply from Mr Leonard and Mr Baird to that element of the Order. Mr Ferguson had written to the Tribunal setting out his view prior to the issue of the Order. That was on 7 January, page 95 of the file. He had supplemented that by comments made after Mr Leonard had withdrawn the claim of discrimination initially made by him.[12]The respondents had made an application for Unless Orders in relation to Mr Leonard and Mr Baird (pages 106 to 112 of the file). Those applications were opposed by those claimants, their responses being at pages 113 and 115 of the file. Application for Unless Orders[13]I firstly sought clarification from Mr Boyd as to whether the application for an Unless Order was insisted upon and if so in what regards. I was conscious that Mr Leonard had withdrawn the claim of discrimination and elements therefore of the original Order were no longer relevant and would therefore be properly part of the application for the Unless Order. The application would not therefore be advanced at this PH in the terms intimated.[14]Mr Boyd confirmed that he sought an Unless Order in relation to paragraphs 2 a and b of the Order of 14 January as far as Mr Baird was concerned and in relation to paragraphs 3 j, k, l, m, n and o of that Order in relation to Mr Leonard.[15]Mr Baird was not present at this PH, of course. In terms of Rule 47 of the Employment Tribunals (Rules of Constitution & Procedure) Regulations 2013 the option of dismissal of the claim existed. Mr Boyd did not however seek that. He referred to the interests of justice and to equality of arms. He regarded issue of an Unless Order as a fair means of giving Mr Baird one last chance to address the Order issued and to set out the basis on which he said he was able to proceed with a claim of unfair dismissal against the respondents.[16]It is distinctly unsatisfactory that Mr Baird was not present at this PH. I understand the difficulties which may be caused by attending Tribunal rather than being at work. It is unclear when time off was sought, what reason was given for that and indeed why time off was refused. The claim is brought by Mr Baird. He requires to be prepared to pursue it. Despite being ordered so to do, he has not explained why it is that he says he is entitled to bring a claim of unfair dismissal, in circumstances where he does not appear to have had, or to argue that he had, more than 2 years’ service with the respondents. This PH was arranged to decide if he was in a position to proceed with his claim. For clarity, Mr Baird does not allege any circumstances exist in which a claim can be brought without qualifying service.[17]I considered it appropriate that an Unless Order be issued requiring Mr Baird to provide the basis he says exists for entitlement on his part to bring claim of unfair dismissal, looking specifically at the requirement of there being 2 years’ service for bringing a claim of the type he makes. I am aware of the severe consequences if an Unless Order is not met. Those are the most severe possible from the point of view of a claimant, namely the claim coming to an end. I was satisfied, however, that issuing an Unless Order was the appropriate step to take.[18]If the Unless Order is complied with, it may be that a PH is appropriately arranged in the case of Mr Baird to determine whether the Employment Tribunal has jurisdiction to hear his claim. That can be assessed if and when the reply to the Unless Order is received.[19]In relation to the application from an Unless Order in Mr Leonard’s claim, I had the benefit of Mr Leonard being present. He was able to reply to that application.[20]Mr Leonard reiterated that he had a learning difficulty. He found it hard to understand detailed documents and to prepare a written explanation of his position. He said that he was doing his best, however was struggling. I asked whether he might be able to obtain assistance from family or friends. I mentioned the possibility of assistance being obtained via Citizens Advice Bureau, University Law Clinics or possibly a solicitor. I also said that the Citizens Advice web page had guidance in relation to loss which might be claimed in a case of unfair dismissal and, I believed, had a style or template with relevant headings.[21]Mr Leonard said that Mr Ferguson had confirmed he was willing to help him in the case. Their cases were very similar. They both argued that the ACAS Code had not been followed and that there was inconsistency of treatment in that others who had done as they had done had been treated more leniently. He referred to having covered matters in his appeal letter.[22]I sought to explain to Mr Leonard why it was that the information was sought. It was in his interests to set out his case. That would ensure fair notice of it had been given to the respondents. It would avoid lines of evidence or arguments which he might wish to follow being closed to him as they had not been set out in his case to the Tribunal. There might be a lot of material in his appeal document. He had to confirm to the Tribunal which aspects (which might be all of them) of that document he was relying upon in his claim to the Employment Tribunal. He should set out the points he relied on in his case in his reply to the Order. Similarly, when he said that there had been breaches of the ACAS Code, he had to specific about what those breaches were said to have been. He had to say, in addition, who it was that he said had been treated differently, or what led him to the view that others had been treated differently and more leniently.[23]Mr Leonard confirmed that he wished time to be able to answer the Order. He now believed that he could do that, potentially with help from Mr Ferguson, family or friends or the other sources of advice mentioned above.[24]Mr Boyd expressed the view that the goal was to have clarity as to the claim. When I raised timeframe for any response from Mr Leonard, he said that the respondents wished to ensure that they had the information on the claim and so he did not strongly object to a lengthier time than perhaps usual being granted to Mr Leonard in the circumstances explained.[25]I considered the position and came to the view that an Unless Order was appropriate. I understood and weighed in my assessment the difficulties Mr Leonard spoke about. I kept in mind the overriding objective and the interests of justice. I also had in mind the ending of the claim being the consequence of non-compliance with the Unless Order.[26]There has been an Order issued previously. Fair notice of the claim is important. It enables the Employment Tribunal to be clear as to the case being advanced and the issues to be determined. It enables the respondents to be prepared for the case to be met. It ensures that the claimant has a basis on which evidence can be led upon the points he wishes to make.[27]I was satisfied that Mr Leonard was able to understand what it is that he requires to do to comply with any Order issued. It is helpful that Mr Ferguson is prepared to assist him, in addition to any other assistance he may be able to access.[28]In all the circumstances I was persuaded that it was appropriate to issue an Unless Order at the moment. I concluded that providing a period of 42 days from date of this PH would give Mr Leonard sufficient time to respond with the required information. I confirmed that time period to him as being the time the was given to reply to the Order. I also explained the effect of an Unless Order and that his case would end if he did not comply with it. The Unless Orders are made above. Combining of claims[29]I then turned to combining of the claims. The respondents opposed that. Mr Leonard and Mr Ferguson urged me to combine the claims.[30]Mr Boyd recognised that with Mr Leonard’s discrimination claim having ended, there was less of a difference between his claim and that of Mr Ferguson. Mr Baird’s claim however was following a different path, he said. The preliminary matter of jurisdiction required to be determined. Whilst opposing combining of any of the claims, Mr Boyd submitted that, if any claims were to be combined, those claims should be restricted to the ones brought by Mr Leonard and Mr Ferguson.[31]Mr Ferguson said that there was real overlap between the cases. The claimants all referred to breaches of the ACAS Code. They all said that they had been treated more severely than others who had committed similar “offences”. I noted that Mr Ferguson’s case was scheduled to proceed to a hearing in 14 days’ time. I explained that if the cases were combined it was inevitable, given the Orders issued and time for compliance, that the hearing currently arranged would be lost as it would be postponed. Mr Ferguson accepted this and remained of the view that combining the cases was appropriate. Mr Leonard agreed with Mr Ferguson’s points and conclusion. Both Mr Ferguson and Mr Leonard understood the preliminary point which was fundamental to Mr Baird’s case and which required to be decided prior to any hearing in his case.[32]I checked my understanding as to witnesses with Mr Boyd. He confirmed that while the investigator was different in each case, the decision to dismiss had been taken by the same person in each case. Similarly, the appeal had been determined by the same person in each case.[33]The view I came to was the cases of Mr Ferguson and Mr Leonard were appropriately combined. They are both cases of unfair dismissal. They involve the same witnesses, save for the investigator. It appears that the arguments being advanced by each claimant are very similar. Mr Ferguson appears likely to be assisting Mr Leonard with his claim. The Order combining the claims is above.[34]As a result of this the hearing scheduled in Mr Ferguson’s case for 19 and 20 May is postponed.[35]Mr Baird also brings a claim of unfair dismissal. A fundamental point is in course of being explored. That is length of service. A PH may be required in relation to that point. I concluded that, certainly at present, it was not appropriate to combine Mr Baird’s case with that of the other 2 claimants. Next Steps[36]After discussion, it seemed to me that it would not be appropriate to fix a hearing in the combined cases. Mr Leonard requires to provide the information set out in the Unless Order. That will confirm the areas for decision in the case he brings. The extent of the evidence will be clearer. The length of the hearing will be easier to determine with this fuller information. At present it may be that 5 days are required.[37]The course which I decided to follow was to arrange a case management PH for one hour in the combined cases. It was set, after further discussion, for 9am on 7 July. It will be conducted by telephone conference call and will be given a time allocation of one hour. The Clerk to the Tribunals is requested to send to Mr Ferguson, Mr Leonard and to those instructing Mr Boyd the hearing notice for this PH. It should be before me if at all possible. The PH will consider where things sit given the anticipated reply to the Unless Order from Mr Leonard. It will consider hearing arrangements, including whether written witness statements will be used. Mr Leonard’s learning difficulty will be a factor in that decision. Compilation of documents will also be considered, together with hearing length and dates for the hearing.[38]If Mr Baird’s case is proceeding to a hearing then, assuming the combined cases of Mr Ferguson and Mr Leonard have not been heard by then, consideration may be given to any application to combine Mr Baird’s case with that of Mr Ferguson and Mr Leonard.[39]There were no other matters which I regarded as being relevantly considered or determined in this PH which therefore closed.[1]This Judgment is in relation to the claim brought by Mr Leonard. That claim was combined with 2 other claims. One, that brought by Mr Baird, case 4106738/20, has come to an end. The other case, brought by Mr Ferguson, is proceeding.[2]The case brought by Mr Leonard proceeded to a case management Preliminary Hearing (“PH”) on 6 May 2021.[3]At that time, there was concern on the part of the respondents that there was inadequate specification by Mr Leonard of his remaining claim, that of unfair dismissal. He had confirmed withdrawal of his claim of discrimination.[4]There had been an earlier PH on 14 January 2021. Orders had been made at that time. At the PH on 6 May 2021, for reasons set out in the Judgment following thereupon, the Order issued was issued on an Unless basis. Accordingly, the Order stated that Mr Leonard required to do various things and that if he did not within the time given for compliance, his claim would be dismissed without further order.[5]It is appropriate to set out the Order issued on the Unless basis. It was in the following terms:- “By 17 June 2021 Mr Leonard will detail to both the Employment Tribunal, and the respondents:-(1) Why it is that he says his dismissal was unfair in terms of the Employment Rights Act 1996.(2) Which provisions of the ACAS Code of Practice it is that he alleges the respondents have failed to comply with and what those failures are said to have been.(3) What it is that he asks the Employment Tribunal to award him if he succeeds in his claim of unfair dismissal.(4) If he seeks a financial award, in addition to specifying that and the amount he seeks, he will set out how the sum which he seeks is calculated.(5) Whether he has obtained a new job since dismissal by the respondents and, if so, when he started that new job and what income he has received from it.(6) If he has not obtained a new job since dismissal, he will provide details of any applications made by him trying to find a new job and also whether he obtained an interview for any such possible new job.(7) Any government benefit he has received since his employment with the respondents ended.” Compliance with the Unless Orders[6]Unfortunately, although the terms of the Unless Order had been discussed at the PH on 6 May and were detailed in a Judgment signed on 7 May, the Judgment was only sent to parties on 28 May due to administrative issues.[7]In the interim Mr Leonard had submitted information to the Tribunal. He did this by emails sent on 12 and 25 May. The email of 12 May did not have a case reference on it and so did not make its way to be linked up with the other cases papers.[8]Compliance was required by 17 June in terms of the Order. After that date the file was referred to an Employment Judge in light of the approaching PH. It was scheduled for 7 July. That Employment Judge had viewed the position from the file as being that Mr Leonard’s claim was at an end. He had reached that conclusion as he was under the impression that Mr Leonard had not replied to various elements of the Unless Order. This was as the email of 12 May from Mr Leonard was not something of which he was aware.[9]Now that both emails from Mr Leonard have been located and can be considered, the question arises as to whether there has been compliance or not with the Unless Orders.[10]It is possible for there to be a hearing on that matter. I canvassed both parties. Neither requested a hearing. Both submitted written representations. Each had the opportunity to comment on the submissions of the other. I decided that the assessment of compliance or otherwise with the Unless Order would be undertaken having regard to the Order issued, the 2 responses to it and to the written representations of the parties.[11]I was satisfied that it was in the interests of justice to proceed in this manner. I bore in mind that Mr Leonard has learning difficulties and found it hard to express himself verbally. He is representing himself, although he is consulting with his fellow claimant, Mr Ferguson. For clarity, there was no Unless Order issued on relation to Mr Ferguson. The delay involved in a hearing taking place to consider the question of compliance with the Order also weighed in my conclusion that I should consider the written representations rather than set down a hearing. The fact neither of the parties responded seeking a hearing when asked the question was a further factor. I was also satisfied that each party had had the chance to make their representations in support of their respective positions.[12]In assessing whether compliance with an Unless Order has occurred, an Employment Tribunal requires to consider the question of whether there has been material non-compliance with the Order or not. Compliance does not require to be precise and exact. That is confirmed in Johnson v Oldham Metropolitan Borough Council EAT 0095/13. The test is a qualitative one rather than a quantitative one. The terms of the Unless Order as issued must be kept in mind. The Employment Tribunal cannot at the time of assessing whether compliance has occurred, in effect reconsider the Order or revisit the position which existed at the time it was issued and assess whether or not it should have been issued at all, or whether it ought to have been issued in the terms in which it was. The case of Uwhubetine and anor v NHS Commission Board England and ors EAT 0264/18 confirms this. It is also not for the Employment Tribunal to assess whether the details of the response to an Unless Order are factually correct or legally sustainable. Those are matters for a different day. Uwhubetine also states that the approach is to be facilitative. Where there is ambiguity as to compliance, that should be resolved in favour of the person who is to comply.[13]Partial compliance with an unless order is not sufficient. That is confirmed in Royal Bank of Scotland v Abraham 0305/09.[14]If compliance has not occurred, then it is possible that relief from sanctions may be given. The case of particular relevance in this area is Thind v Salvesen Logistics Ltd EAT 0487/09. In that case, the EAT decision stated that compliance with Unless Orders was of importance, however a Tribunal should consider the interests of justice and the overriding objective when it considered possible relief from sanctions. Thind was applied in Polyclear Ltd v Wezowicz and ors EAT 0183/20. There, the Employment Appeal Tribunal held that it was important to consider the attempt made to meet the Order and to analyse how far short of material compliance that had been. Factors which would properly be considered in considering the question of whether relief from sanctions was to be given were said to include, but not to be limited to, the reason for the default. Particular consideration should be given to whether the failure was deliberate or not. Regard should also be had to the seriousness of the default. It was proper to consider the prejudice to the other party and also whether a fair trial is still possible. Each case will depend on its facts.[15]In this case, although there was thought to have been an issue as to receipt of any response from Mr Leonard to a substantial part of the Order, it transpired that there were in fact 2 replies from Mr Leonard. One bore to be his schedule of loss with associated information. The other dealt with breaches he alleged of the ACAS Code. It mentioned within it the view he held as to his dismissal having been unfair. It set out, as I read it, why it was that he regarded his dismissal as being unfair.[16]An Unless Order not being met leads to the most severe consequence. The claim is dismissed without further procedure or order.[17]In my view, in assessing a response to an Unless Order, it is relevant to keep that mind. It is also relevant as I see it, to have regard to the party who is being asked to comply with an Unless Order. Issuing such an Order should not be a “back door” method of ending a claim. If the person seeking to comply with an Unless Order is a party litigant, that should properly be kept in mind in considering the response and whether there has been compliance with an Unless Order. The test is whether there has been material non-compliance with the Order.[18]If therefore there has been material compliance with the Order, then the Order falls to be regarded as having been met. I do not see the exercise which I had to undertake as involving fine scrutiny of the reply to the Order. The approach is to be facilitative, as mentioned above in Uwhubertine. Certainly a cursory or dismissive, brief response might be seen as not addressing the Order. That, however, is not what Mr Leonard tendered in reply to the Order.[19]In considering the position I also reminded myself that it is not for me to determine if Mr Leonard is correct in his position in the replies he has submitted. What matters is whether there has or has not been material non-compliance with the Unless Order.[20]I have concluded that the response to the Unless Order is not material noncompliance with the Unless Orders made. The claims are not therefore automatically struck out.[21]I have come to this view keeping in mind that the objective in the Order was to obtain details of(1) the breaches of the ACAS Code which Mr Leonard said had occurred,(2) why it was that he said his dismissal was unfair and(3) what it was he said the Tribunal should award, if he did indeed seek financial compensation, with details of what he had done to mitigate his loss.[22]The document Mr Leonard submitted on 12 May states in the introduction that he will “explain what ACAS guidelines I believe the respondents have broken and why I feel I have been unfairly dismissed.”[23]It is true that both elements are dealt with in a composite manner by Mr Leonard. He does however, in my view, give notice of the elements of the ACAS Code he says were breached and why he says his dismissal was unfair. He refers to there being a lack of consistency. He mentions the circumstances of a different employee who he says faced “the same charge” but who received a different outcome. He says that the respondents did not act consistently, and highlights the ACAS Code with its provision that employers should act consistently. Mr Leonard could have given the name of the employee to whom he refers. What he says is that he will do so “at the courts request”. It seemed to me that this is something which might be taken up with a request by the respondents for those details to be provided by Mr Leonard. In my view it would be appropriate that the information is given. I do not see, however, that an initial failure to supply this information in response to the Order, means that material non-compliance has occurred.[24]Throughout his response to the Order, Mr Leonard links together what he regards as the requirements of the ACAS Code and what he says actually happened. In addition to the point mentioned, he says, for example, that he was not told of the basis of the problem and so was not able to provide a full response when challenged. The point is perhaps not elegantly set out. It is not as full by way of giving fair notice as respondent might wish it to be. Those are matters, however, which can potentially be picked up and be made the subject of requests for further particulars or Orders to provide those. Keeping in mind Mr Leonard being a party litigant and the test of material non-compliance, I am content that material compliance with the Order has occurred.[25]I also read the reply to the Order from Mr Leonard as providing information in relation to what he says were breaches of the ACAS code, such that material compliance with the Order has occurred.[26]Turning to the information given as to remedy sought, Mr Leonard provides what he states to be a Schedule of Loss. It is clear to me that he seeks a financial award if successful.[27]Mr Leonard has broken down the financial sum which he seeks. He has not accurately reflected the way in which a basic award is calculated. He would not however be the first unrepresented claimant so to do. The basic award is something which is relatively readily calculated by those dealing with claims regularly. I do not think it can be said that the respondents are prejudiced by the claimant’s inaccuracy in this calculation.[28]In relation to the compensatory element, Mr Leonard states that he “was seeking work for a period of two months before securing a new permanent job”. He seeks payment of what he says he would have earned for the respondents in that two month period.[29]He also seeks payment in respect of statutory rights, an uplift for alleged failure to follow the ACAS Code and an amount in respect of what he says was a failure to provide him with a statement of terms and conditions. The latter element is something which an Employment Tribunal must award if the facts establish such a failure in circumstances where a relevant claim has been successful.[30]It is clear that Mr Leonard seeks a financial award. It is clear he has obtained another job, within 2 months of the his dismissal. He does not seek on-going loss. Presumably (and I accept it is a presumption) his salary from his new job exceeds that which he earned with the respondents. His claim is certainly limited to the 2 month period.[31]There is no information as to government benefit, if any, which he received during his period of unemployment for 2 months between jobs. In my view this is a relatively minor omission in responding to the Order. The information in question can be supplied between now and the hearing. I do not see Mr Leonard as flouting the Order by not giving that information. I do not see it as material non-compliance for that information not to be provided when compliance or otherwise to a material extent is determined by consideration of the response in both emails and documents from Mr Leonard.[32]In saying all of the above, I accept that there can be valid criticism made of Mr Leonard for not ticking every element of every box in the Unless Order. In my view, however, there has not been material non-compliance with the Unless Order. There has not been partial compliance with an Unless Order in my view.[33]In those circumstances and for those reasons, the view to which I came was that the Unless Order had been met to the extent that the claim was not dismissed under Rule 38 without further Order.[34]If I am wrong in that conclusion, I am persuaded that it is appropriate to grant relief from sanctions. I regard there as having been a diligent attempt to meet the Order. I do not see, what in that circumstance would be, the failure to comply with the Unless Order as deliberate. The extent of default is not serious. I do not see there as being prejudice to the respondents, other than an element of delay. A fair trial remains possible as I see it.[35]I set out my opinion as to relief from sanctions for clarity and for convenience of parties, so that they are aware of that.[36]I understand there to be a case management PH set down for 16 September in the claim brought by Mr Ferguson. I believe that the claim brought by Mr Leonard can be set down to become part of the elements considered at that PH. The 2 cases were combined at the PH on 6 May.