What is an unless order?

In the recent case of Minnoch and Others v Interserve FM Ltd, the Employment Appeal Tribunal (“EAT”) overturned the tribunal’s earlier decision to strike out the claims of 37 claimants for their failure to comply with an unless order. The EAT reviewed a number of previously decided cases and distilled them into key points to consider. 

This case provides useful guidance for those faced with tribunal claims, particularly if they (or another party) become subject to an unless order.

What is an unless order?

An unless order is an order that specifies that, if it not complied with by the specified date, the claim/response (or any part of it) shall be struck out (i.e. not allowed to continue). This power is contained in Rule 38 of the Employment Tribunal Rules of Procedure 2013 (‘ET Rules’).

Background to the case

In this case, Minnoch and 36 others brought claims against Interserve FM Ltd for withholding pay for strike days and for failure to identify the deductions in their payslips. In a preliminary hearing, the judge directed that each of the claimants should serve certain documents, including:

  • A schedule of loss and damage claimed for each claimant
  • A list of all relevant documents and
  • Copies of these documents

However, the claimants failed to comply with the order within the specified period. The judge subsequently made an unless order, stating that the claim of any claimant would be struck out unless they complied with the earlier order within 7 days. 3 days after the expiry of the deadline, the judge sent a notice stating that all the claims had been struck out as the claimants failed to comply, pointing to issues such as the failure to provide a separate schedule of loss for each claimant (they had instead provided a single document covering all 37 claimants). The claimants appealed to the EAT and the appeal was upheld on the grounds that:

  • The judge failed to consider whether there had been material non-compliance with the unless order
  • That the judge failed to adopt a qualitative test with a facilitative rather than punitive approach
  • The judge took into account irrelevant factors

Stage 1 – Making an unless order

In his judgment of the EAT, HHJ Tyler set out several points to consider when making an unless order. He highlighted that there is a “draconian consequence of material non-compliance” with an unless orders and therefore, unless orders will need to be drafted carefully so that it is easy to determine whether there has been material compliance and what the penalty is for non-compliance (or partial compliance). He also highlighted there could be a lesser sanction such as limited reliance on materials.

Stage 2 – giving notice of non-compliance

HHJ Tyler highlighted that, where there has been some attempt at compliance, the tribunal should consider giving the defaulting party an opportunity to give submissions (in writing, or orally at a hearing) before the decision is made regarding non-compliance. If there is ambiguity in the drafting of the order, it should be resolved in favour of the party who was required to comply.

Stage 3 – relief from sanction

There are also some circumstances where it may be appropriate to relieve the defaulting party from the sanction for failure to comply with an unless order. HHJ Tyler stated that the assessment of whether relief should be granted involves a broad consideration of what is in the interests of justice. The tribunal should consider key factors including:

  • The reason for the default (and in particular, whether it was deliberate)
  • The seriousness of the default
  • The prejudice to the other party
  • Whether a fair trial remains possible 

What should I do if I am subject to an unless order?

If you are subject to an unless order, it is important that you comply with the order before the given deadline as otherwise you risk having your claim or response struck out.

If you have legal representation, it is usually your solicitor who will need to take steps to comply with an order. However, you will need to ensure that you take any action required of you such as, in the event of an order for disclosure of documents, providing your solicitor with copies of all documents relevant to the claim. It would be prudent to familiarise yourself with the contents of the Unless Order so that you know what is expected.

Minnoch and ors v Interserve FM Ltd is helpful as it should ensure that the tribunal will be more careful in their drafting of unless orders, meaning that the steps which need to be taken in order to comply will be less ambiguous, and therefore it will be easier to show compliance. The case also helps to provide more protection for those who are subject to an unless order as it should be resolved in favour of the party subject to the unless order in the event of ambiguity and there are clear factors that the tribunal will take into account when considering a relief from sanction. Despite this, it is important that those subject to an unless order do not become complacent in their compliance. 

How else can a claim be struck out?

Unless orders are not the only mechanism in which a claim or response can be struck out. Rule 37 of the ET Rules provide the grounds on which the tribunal may strike out all or part of a claim or response. Including where:

  • It is scandalous or vexatious or has no reasonable prospect of success
  • The manner in which the proceedings are conducted has been scandalous, unreasonable or vexatious
  • Non-compliance with any of the ET Rules or with an order of the tribunal
  • That the case is not being actively pursued
  • It is no longer possible to have a fair hearing. 

In a claim in which Moore Barlow recently acted for the respondent employer, for example, the claimant (who was unrepresented) failed to attend the preliminary hearing and had not responded to communication from the tribunal or from the respondent’s solicitors. The claim was struck out on the grounds that the claim was not being actively pursued (Rule 37(1)(d) ET Rules).

What should I do if my claim/response is struck out?

Before a claim can be struck out, the party must be given a reasonable opportunity to make representations, either in writing or orally at a hearing. It is therefore important to respond before the deadline set by the tribunal, and set out why it would not be appropriate to strike out the claim/response with reference to the ET Rules. In particular, it may be a good idea to draw the tribunal’s attention to the factors listed in “Stage 3 – relief from sanctions” above, as well as other factors such as:

  • Whether you are unrepresented; whether your conduct in the case has been reasonable in all the circumstances
  • Whether there is a factual dispute which may be best heard at a full hearing.

If, however, your claim/response is struck out, you may want to consider appealing to the EAT.

How Moore Barlow can help

For guidance on the Employment Tribunal and its procedures, get in touch with a member of the Moore Barlow Employment Team.