Ms J Maciel v Crouchers Hotel Ltd and Others: 6004507/2025
JUDGMENT
[1]The claims of harassment related to marriage and/or civil partnership are dismissed upon their withdrawal by the Claimant. The Claimant’s remaining claims will proceed to a further hearing. Approved by: JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD IN CHAMBERS AT BRISTOL ON 3 March 2026 EMPLOYMENT JUDGE J Bax[2]JUDGMENT ON APPLICATION FOR RECONSIDERATION The judgment of the tribunal is that the claimant’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.REASONS
[1]The Respondent has applied for a reconsideration of the decision that an unless order was materially complied with dated 25 January 2026 which was sent to the parties the same day (“the Judgment”). The grounds are set out in the application dated 6 February 2026, which was received the same day.[2]The Employment Tribunal Procedure rules 2024 set out the rules of procedure. Rule 69 provides in respect of an application for reconsideration under Rule 68 that, “Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately.[3]The application was therefore received within the relevant time limit.[4]The grounds for reconsideration are only those set out in Rule 68, namely that it is necessary in the interests of justice to do so.[5]The grounds relied upon by the Respondent are these:a. The correct test for whether an unless order was complied with was not whether it was sent by the deadline but whether it achieved the purpose of the order. Assessed qualitatively what the Claimant provided was lacking in terms of key parts of the case.b. The response provided remained diffuse and imprecise.c. The process was unfair because it involved a live issue of whether there was material compliance and the Respondent was not given an opportunity to comment. Procedural background[6]The claim form identified a number of allegations said to amount to a breach of the implied term of trust and confidence and/or sex and/or marital discrimination. Specific dates and details were not provided.[7]At the case management hearing on 11 November 2026, the Claimant was ordered to provide information setting out the specific allegations relied upon, which was to include:(1) the date of the incident,(2) who was involved,(3) a brief description of what happened, and(4) details of any comparator if applicable.[8]The Claimant had not provided the information by the date required and the Respondents made an application for an unless order.[9]On 17 December 2025, Employment Judge Livesey ordered, “Unless by 29 December 2025, she complies with paragraph 12 of the Order of 11 November 2025, those claims for which further information was required within the Case Summary’s list of issues (referred to in paragraph 12.1 of the Order) will be dismissed without further order.[10]On 29 December at 17.05 the Respondent wrote to the Tribunal and said that the Claimant had taken no steps to comply with the unless order.[11]On 29 December 2025 at 23.26 the Claimant provided a draft list of issues in which she said that she had provided the further information required. It was further said that the dates of incidents and the details were provided where available and the Respondent’s application was premature.[12]The correspondence was referred to the Judge on 2 January and a response provided. On 25 January 2026, the parties were written to in which it was said that the information was provided on 29 December 2025. There appeared to be material compliance with the order within the deadline and the Respondent’s correspondence was premature.The law
[13]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[14]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 3). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[15]In Outasight VB Ltd v Brown [2015] ICR D11, EAT, HHJ Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ in rule 70 allows the tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[16]In Wentworth-Wood & Others v Maritime Transport Limited UKEAT/0316/15/JOJ HHJ David Richardson considered the potential judicial decisions that may be made in in respect of an unless order: “4. Rule 38 clarifies Employment Tribunal procedure concerning Unless Orders. The Employment Tribunal, usually the Employment Judge alone, is potentially involved at three stages, each involving different legal tests. 5. Firstly, there is the decision whether to impose an Unless Order and if so in what terms. …. 6. Secondly, there is the decision to give notice under Rule 38(1). … The decision to give notice simply requires the Employment Tribunal to form a view as to whether there has been material non-compliance with the Order …” 55. An Employment Judge, before causing notice to be given under Rule 38(3), must be satisfied that there has been material non-compliance with the Order. But there is no mandatory process to be followed. The Employment Judge's only duty before giving notice is to comply with the overriding objective, which requires cases to be dealt with fairly and justly. In some cases the Employment Judge may be able to see clearly from the file or from correspondence that an Order has not been complied with. In such a case the Employment Judge is entitled to give notice without further reference to the parties. But if there is doubt - for example in a case such as this, where one party writes to the Employment Tribunal to allege that there has been non-compliance with an Unless Order - the Employment Judge will give the other party an opportunity to comment. If there is still doubt, and the Employment Judge wishes to hear argument, the matter may be considered at a hearing. Fairness requires that if the matter is to be considered at a hearing the parties concerned should have sufficient notice of the issue to prepare for it.”[17]In Uwhubetine v NHS Commissioning Board England UKEAT/ 0264/18/JOJ, HHJ Auerbach stated, of the decision required at stage 2: “44. Where a Tribunal is determining whether there has been compliance with an Unless Order and hence whether to give written notice as to whether the relevant pleading has been dismissed by the Order taking effect, the Tribunal is not concerned at that point with revisiting the terms of the Order: whether it should have been made, or whether it should have been made45. The starting point for the Tribunal engaged in that task is to consider the terms of the Order itself and whether what has happened complies with the Order or not. This may call for careful construction of the terms of the Order, both as to what the Order required and as to the scope of the Order in terms of the consequences of non-compliance, particularly in cases where there are multiple claims or multiple parties. If there is an ambiguity the approach should be facilitative rather than punitive, and any ambiguity should be resolved in favour of the party who was required to comply. However, what the Tribunal cannot do is redraft the Order or construe it to have a meaning that it will not bear, though its words should of course be construed in context.46. Next, the test to be applied is as to whether there has been material non-compliance, that being a qualitative rather than a quantitative test. In a case where the Order required some further Particulars to be given, the benchmark is whether the Particulars have sufficiently enabled the other party or parties to know the case that they must meet. However, the Tribunal is not concerned with the legal or factual merits of the case advanced, but merely with whether sufficient Particulars have been given to meet that test.”[18]In Johnson v Oldham Metropolitan Borough Council UKEAT/0095/13/JOJ Langstaff J held: “6. … I accept that, in any case where the consequences of noncompliance with an unless order fall for consideration, all is likely to … depend [on] the precise terms of the order. For the assistance of Tribunal Judges, given the concern that Judge Feeney here expressed about her own position in respect of Abraham, I would simply note that because so much in my view turns upon the precise form of the unless order made and because the consequences of an unless order may be draconian, judges making such an order in the first place may wish to consider tailoring it with particular care. For instance, such an order might provide that any allegation not sufficiently particularised might be struck out. Such an order would leave it open to a subsequent Judge to conclude that there had been compliance in respect of some allegations, which would not therefore automatically be struck out, even though there had been non-compliance in respect of others which were. 7. The phrase used by Pill LJ in Marcan was, "...any material respect": I would emphasise the word "material". It follows that compliance with an order need not be precise and exact. It is agreed by counsel before me that Employment Judge Feeney in adopting a test of substantial compliance therefore adopted one in accordance with the law. I would make this comment however: "material" may be a better word than "substantial" in a case in which what is in issue is better particularisation of a claim or response. That is because it draws attention to the purpose for which compliance with the order is sought; that it is within a context. What is relevant, i.e. material, in such a case is whether the particulars given, if any are, enable the other party to know the case it has to meet or, it may be, enable the Employment Tribunal to understand what is being asserted. To use the word 'substantial' runs the risk that it may indicate that a quantitative approach should be taken: thus, where 11 matters must be clear to enable a party to deal fairly with a claim, of which 9 have been provided but not 2, which remain necessary, compliance has not materially been provided because the purpose of seeking compliance has not been achieved in the context; the other party still cannot obtain a fair trial. To adopt a quantitative approach may erroneously lead the Judge in such a case to conclude that there had been sufficient compliance (9 out of 11) even if the further particulars remained necessary before a fair trial could take place. Substantial compliance has thus in my view to be understood as equivalent to material compliance not in a quantitative but in a qualitative sense.”Conclusions
[19]The Respondent wrote to the Tribunal as to whether the unless order had been complied with before the deadline expired and before the Claimant had responded to the Tribunal. The fact that the Claimant left it very late did not prevent the response being made within the deadline.[20]The Respondent mischaracterised the decision as stating that because the Claimant had provided the information by 29 December the order had been satisfied. There had been consideration as to whether there had been material compliance.[21]The Tribunal was concerned with whether there had been material compliance with the order. If the Claimant had not named a specific comparator she is left with a hypothetical comparator.[22]The Claimant set out the specific allegations relied upon and provided dates. Some of those dates were not as clear, in relation to the allegations at the paragraphs at2.1 in the draft list of issues, although it was noted that further detail was set out in the subsequent paragraphs. In the subsequent paragraphs at2.2 to 2.23, in relation to constructive dismissal, the Claimant identified specific dates and people involved. The direct discrimination claim was put on the basis of sex and identified a male comparator, i.e. a hypothetical comparator and relied upon the same allegations as for the constructive dismissal claim, as did the complaint of harassment related to sex. The allegations of victimisation also identified the events relied upon.[23]The list of issues was sufficient to identify what was being alleged. The Respondent says that it cannot understand what is being alleged. The application needs to be looked at in the context that the dispute is part of an acrimonious dispute within a family. The vast majority of the allegations were identified and could be understood. Applying the various tests and looking at the matter qualitatively, the Claimant had materially complied with the unless order. It was for this reason that the decision on 25 January 2026 was sent. The representations by the Respondent do not change that view and there are no reasonable prospects of success in the order being revoked or varied.[24]The Respondent sent its correspondence before the deadline and before the Claimant responded. If I had thought that there might not have been material compliance, the Claimant would have been required to make representations. In the circumstances it is the Judge’s evaluation as to whether there was material compliance. In the context of the litigation and information provided by the Claimant it was necessary to consider the situation fairly and justly in accordance with the overriding objective. This was a matter which could be fairly and justly determined on the papers without recourse to the parties. There are not reasonable prospects of success in the decision being varied or revoked on this contention.[25]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked. Approved by