{"id":676328,"date":"2026-04-24T23:38:44","date_gmt":"2026-04-24T21:38:44","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\/"},"modified":"2026-04-24T23:38:44","modified_gmt":"2026-04-24T21:38:44","slug":"n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\/","title":{"rendered":"N Leeks v Brighton and Sussex University Hospitals NHS Trust"},"content":{"rendered":"
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SUMMARY PRACTICE AND PROCEDURE \u2013 dismissal of claim for non-compliance with unless order \u2013 rule 38 Schedule 1 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013(\u201cthe ET Rules\u201d) \u2013 fair hearing The claimant, who was acting in person and had various health issues that meant that she needed adjustments to enable her to engage with the Employment Tribunal (\u201cET\u201d) process, had brought claims of unlawful discrimination arising out of the withdrawal of a job offer with the respondent. An unless order was made requiring the claimant to exchange her witness statement with the respondent on 18 November 2019. On 7 November 2019, the claimant applied for that order to be varied (allowing her more time to prepare her statement) but had not received a response from the ET by the required date of compliance. On 18 November 2019, the claimant sent the respondent a document that was said to be her statement, \u201csubmitted in the interim\u201d, pending determination of her application for variation. The statement was essentially in the same terms as the particulars of claim attached to the claimant\u2019s ET1. The respondent took the view that the claimant had not thereby materially complied with the terms of the unless order. This issue was considered by the ET at the outset of the full merits hearing on 2 December 2019. Although the ET delayed the start of the hearing pursuant to the claimant\u2019s request for such an adjustment, she was not in attendance and the ET proceeded to make a decision in her absence, finding that she had not complied with the unless order. This was confirmed by letter from the ET on 30 January 2020, although the letter did not state the name of the Employment Judge or specify that the decision had been taken at the hearing on 2 December 2019. Upon the subsequent refusal of the claimant\u2019s application for reconsideration, the ET observed that had the claimant made clear that she was seeking to rely on her particulars of claim as standing as her witness statement in these proceedings there would have been no need for the unless order to be made; in stating that she was serving an \u201cinterim\u201d statement, the claimant had instead indicated that this was not the totality of her evidence. In the circumstances, the ET did not consider she had complied with the terms of the unless order. The claimant appealed. Held: allowing the appeal. The ET had not erred in proceeding to consider the question of compliance with the unless order in the claimant\u2019s absence and she had not thereby been denied a fair hearing. Having delayed the start of the hearing to accommodate the claimant\u2019s request, the ET had been entitled to decide to then proceed in the claimant\u2019s absence. The ET had, however, erred in construing the statement provided by the claimant as an \u201cinterim\u201d statement. As she had made clear, this was her statement provided – so as to comply with the requirements of the unless order – \u201cin the interim\u201d, while still waiting for a response to her application for variation; the claimant had not suggested that, if that application was refused, she would not rely on the statement she had provided as standing as her evidence at the full merits hearing. Any concern that the ET had that the claimant would subsequently seek to add to her evidence could have been addressed by directing that the statement she had provided was to stand as her evidence in chief. The ET\u2019s dismissal of the claim was effectively using the unless order to penalise the claimant for potential future abuses; it did not properly address the question of material compliance. As for the respondent\u2019s submission that the claimant\u2019s statement, by taking the form of the narrative of her particulars of claim, failed to address all the issues raised by the grounds of resistance, that was confusing the question of compliance with an analysis of the evidential strength of the claimant\u2019s witness testimony. It might well be that there were gaps in the claimant\u2019s evidence but that might be explicable given the nature of the claim she was pursuing (a challenge to the withdrawal of a job offer, where the respondent was likely to be better placed to provide evidence as to why it had determined to take the decision it had), or it might simply reflect weaknesses inherent in her case; this did not mean, however, that the claimant had failed to materially comply with the limited terms of the unless order. This was not a case where the claimant had been ordered to provide further particulars of her claim. The unless order had been limited to requiring her to exchange her witness statement for the full merits hearing by 18 November 2021. The claimant had complied with the terms of that order in all material respects and the ET had erred in dismissing her claim under r 38 ET Rules. THE HONOURABLEMRS JUSTICE EADY DBE: Introduction 1. I am today concerned with\u00a0a\u00a0(not uncommon) challenge to the dismissal of\u00a0an Employment Tribunal (\u201cET\u201d)\u00a0claim on the basis of what was found to be material non-compliance with an unless order. There are also subsidiary points of appeal raising questions relating to the fairness of the ET hearing at which the issue of non-compliance was determined. 2. In addressing the primary issue thus raised (the dismissal of a claim for non-compliance with an unless order), it is helpful to keep in mind the observations of Langstaff P in Johnson v Oldham Metropolitan Borough Council UKEAT\/0095\/13 and UKEAT\/0132\/13, as follows: "It is\u00a0a\u00a0critical aspect of fairness that\u00a0a\u00a0party knows the case it has to meet.\u00a0 It is also\u00a0a\u00a0central tenet of justice that disputes should be heard where\u00a0a\u00a0fair hearing is possible and cases should not lightly be ruled out on\u00a0a\u00a0procedural technicality without determination on the merits.\u00a0 These two principles may be seen on occasion to be in conflict, as where\u00a0a\u00a0case is struck out for the failure of one party to state its case sufficiently to allow the other to answer it, but in truth they are capable of reconciliation by exercising case management powers to facilitate\u00a0a\u00a0hearing which is fair for both parties by ensuring that each knows sufficiently what case it has to meet." 3. In giving this judgment, I refer to the parties as the claimant and respondent, as below. This is the hearing of the claimant's appeal against\u00a0a\u00a0decision of the London South ET, communicated to the parties by letter of\u00a030\u00a0January\u00a02020. The claimant today is represented by Mr\u00a0Fox of counsel, acting pro bono; she acted in person below. Mr\u00a0Edwards of counsel appears for the respondent on his appeal, as he did before the ET. The background 4. The ET proceedings commenced with the claimant's presentation of her claim on\u00a027\u00a0April\u00a02018,\u00a0in which she complained of discrimination on the grounds of age, disability and religion and belief, and of public disclosure detriment in relation to\u00a0a\u00a0job application she had made on\u00a024\u00a0August\u00a02017,\u00a0to work for the respondent as\u00a0a\u00a0housekeeping assistant. Although an offer an initially been made to the claimant, that had been conditional upon certain pre-employment checks, and the offer was withdrawn by the respondent on\u00a029\u00a0November\u00a02017\u00a0for reasons that are stated to have been due to the results of the checks in question. In particular, the respondent said it had learned that the claimant had been dismissed for misconduct on three previous occasions, which was inconsistent with the information provided in her application. 5. In the claimant's claim form, under box\u00a012, which asks whether\u00a0a\u00a0claimant has\u00a0a\u00a0disability and, if so, what assistance might be needed for the progression of the case, the claimant had provided the following information: "Scar tissue nerve pains following cancer surgery. Incontinence, fatigue, cold temperature sensitivity – feeling cold all the time, Fibromyalgia [,] generalised muscle pains to the l egs [sic], feet, buttocks, arm pains, overactive bladder, IBS, T2\u00a0diabetes, osteoarthritis left thumb. Assistance needed: Comfort breaks, extra time for written information, Indoor wearing of outdoor clothing, woolly caps and ET telephone hearings." 6. On\u00a05\u00a0July\u00a02018,\u00a0the respondent filed grounds of resistance in which it disputed the claims made and put the claimant to proof as to whether she was\u00a0a\u00a0disabled person for the purposes of the Equality Act\u00a02010\u00a0(EqA). 7. On\u00a025\u00a0July\u00a02018\u00a0there was\u00a0a\u00a0preliminary hearing before Employment Judge Martin, at which the case was set down for\u00a0a\u00a0full merits hearing on\u00a017\u00a0and\u00a018\u00a0January\u00a02019, with directions given to enable that hearing to take place, including the exchange of witness statements (which would be in the format explained by the ET (to which I will return later)) by\u00a017\u00a0December\u00a02018. 8. On\u00a017\u00a0December\u00a02018,\u00a0the claimant was not ready to exchange her witness statement (although I understand she had provided\u00a0a\u00a0disability impact statement on\u00a05\u00a0October\u00a02018). A telephone preliminary hearing took place on\u00a010\u00a0January\u00a02019\u00a0at which the claimant sought to amend her claim and was directed that she must set out the text of any proposed amendment by\u00a015\u00a0January\u00a02019. It appears that she failed to do so. 9. In the event, the hearing on\u00a017\u00a0and\u00a018\u00a0January\u00a02019\u00a0was vacated as there was no judge available. A further preliminary hearing was, however, held on\u00a017\u00a0January at which Employment Judge Spencer refused the claimant's application to amend and re-listed the full merits hearing to commence on\u00a02\u00a0December\u00a02019, giving further directions to enable that to take place, including that the claimant should disclose any additional documents by\u00a031\u00a0May\u00a02019\u00a0and that witness statements were to be exchanged by\u00a028\u00a0June\u00a02019. The claimant did not provide any additional disclosure and was not ready to exchange witness statements on\u00a028\u00a0June\u00a02019. 10. It was against that background that\u00a0a\u00a0further telephone preliminary hearing took place before Employment Judge Wright on\u00a024\u00a0October\u00a02019,\u00a0when an unless order was made as follows: "Unless the claimant sends to the respondent as part of an exchange of witness statements her witness statement on 18\/11\/2019, her claim shall stand dismissed without further order." 11. In making this order, the ET acknowledged that it would have draconian consequences for the claimant if she failed to comply but observed that there was\u00a0a\u00a0history of her having failed to comply with the ET's orders and directions. It was noted there were still\u00a026\u00a0days for the claimant to comply with the order and the ET had regard to the fact that the claim related to events in November\u00a02017,\u00a0and would be over two years old by the date of the final hearing, and that, if that hearing did not place as then listed, there would be\u00a0a\u00a0further six month delay before it could be relisted. The ET recorded that the claimant had agreed at the hearing that, notwithstanding her health issues, she would be in\u00a0a\u00a0position to exchange her witness statement on\u00a018\u00a0November\u00a02019,\u00a0having herself proposed that date. 12. At this hearing the claimant had also sought leave to add further documents to the trial bundle and was ordered to provide her additional documents (of some\u00a0150\u00a0pages) to the respondent by\u00a011\u00a0November\u00a02019. 13. On\u00a07\u00a0November\u00a02019,\u00a0the claimant applied to vary the order of\u00a024\u00a0October\u00a02019,\u00a0to allow for her additional documents to be produced by\u00a021\u00a0November and her witness statement exchanged by\u00a025\u00a0November\u00a02019. This was said to be on the basis of health issues suffered by the claimant that had meant that she had had around\u00a033\u00a0medical appointments on\u00a01\u00a0July to\u00a07\u00a0November\u00a02019, had attended A&E on\u00a023\u00a0October\u00a02019, and was suffering from urinary bladder incontinence. The claimant said that she was "(\u2026) currently severely afflicted and substantially disadvantaged by ongoing worsening symptoms and chronic fatigue (\u2026)", and this was impacting on her medical and physical stamina, and she contended that she was suffering from health anxiety and anxiety with depression. Explaining that she "(\u2026) still has\u00a0a\u00a0lot of documents to disclose in the \u2026 proceedings (\u2026)", the claimant contended that the respondent would not be put to any disadvantage by the proposed variation as it had been ready and willing to exchange witness statements since\u00a022\u00a0October\u00a02019. 14. Various documents were attached to the claimant's emailed application in support, and she included\u00a0a\u00a0completed case management agenda form in which she said she would need reasonable adjustments at the hearing, including\u00a0a\u00a011:00\u00a0am start each day. By letter of\u00a011\u00a0November\u00a02019,\u00a0the respondent made clear that it resisted the claimant's application, noting that only one of the supporting documents provided with the claimant's email post-dated the hearing at which the unless order had been made and that confirmed that she was fit to attend the ET hearing, albeit that she would need some adjustments. 15. Although no application to vary the ET's earlier order had been granted, on\u00a011\u00a0November no additional documents were produced by the claimant. On\u00a018\u00a0November\u00a02019, the claimant provided\u00a0a\u00a0copy of the text of her grounds of claim,\u00a0with some fairly insubstantial changes, describing this as her "(\u2026) statement submitted in the interim \u2026 whilst the claimant is awaiting ET response to the\u00a007\u00a0November\u00a02019\u00a0claimant's application (\u2026)", and stating: "In accordance with rule\u00a037 (7)\u00a0the Claimant also hereby earnestly applies for relief from any strike out sanctions, unless order sanctions and or cost order sanctions and or deposit order sanctions." 16. For completeness, I note that, notwithstanding what had been said in her application of\u00a07\u00a0November, on\u00a021\u00a0November\u00a02019\u00a0the claimant did not provide any further documents. 17. On\u00a022\u00a0November\u00a02019, the respondent wrote to the claimant stating that it would not accept that the claimant had served\u00a0a\u00a0witness statement and, in the circumstances, that it would view the statement as having been struck out. 18. The claimant's proposed revised date for witness statement exchange,\u00a025\u00a0November\u00a02019, also passed without anything further being received from the claimant. 19. On\u00a028\u00a0November\u00a02019, the ET refused the claimant's application of\u00a07\u00a0November\u00a02019. 20. On\u00a01\u00a0December\u00a02019, the day before the trial had been listed to commence, the claimant applied for the start time to be put back to\u00a011:00\u00a0am. She repeated that application just after\u00a010:00\u00a0am on\u00a02\u00a0December\u00a02019\u00a0itself, albeit that second request does not appear to have made its way before the ET by the time the hearing commenced. In any event, although the ET (Employment Judge Wright, sitting with two lay members) and the respondent were both ready to commence the hearing at the listed time of\u00a010:00\u00a0am, the start of the hearing was delayed until\u00a011:00\u00a0am in the light of the claimant's application the previous day. 21. When the hearing commenced at 11:00 am, the claimant was still not in attendance and the ET, considering that there had not been compliance with the terms of the unless order, confirmed that the claim had been dismissed. 22. On\u00a030\u00a0January\u00a02020,\u00a0the ET wrote to the parties to confirm that, the unless order of\u00a024\u00a0October\u00a02019\u00a0not having been complied with, the claimant's claim was struck out. The letter from the ET did not identify the date on which the decision had been taken or the identity of the members of the ET who had made the decision. 23. On\u00a013\u00a0February\u00a02020,\u00a0the claimant made an application that her claim be reinstated, stating that she had nothing to add to her interim statement. This was treated as an application to have the ET's order set aside under rule\u00a038 schedule 1 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, alternatively as an application for reconsideration. On\u00a012\u00a0March\u00a02020,\u00a0the claimant lodged this appeal, which was stayed at the initial paper sift stage, pending the outcome of the ET's determination of the claimant's application of\u00a013\u00a0February\u00a02020. 24. On\u00a019\u00a0August\u00a02020,\u00a0the ET directed that\u00a0a\u00a0preliminary hearing should take place to consider the claimant's application to reinstate her claim. On\u00a018\u00a0September\u00a02020, Employment Judge Wright dealt with the claimant's application for reconsideration on the papers, refusing it for the reasons explained in\u00a0a\u00a0letter of that date, in particular noting that the claimant: "(\u2026) now says that the narrative of her claim has not changed. She never worked for the respondent and so her particulars of claim are the same as her witness statement, i.e. it is one and the same." But concluding: "If that was the case, all the claimant had to do, was make that clear; either at the preliminary hearing on\u00a024\/10\/2019\u00a0or when serving her statement on\u00a018\/11\/2019. In fact, at the time, the claimant indicated the opposite, that the statement she had served was an 'interim\u2019 statement' (presumably to comply with the unless order). Not that it was the totality of her evidence-in-chief and that she had nothing further to add. Indeed, if the claimant had complied with the overriding objective, the earlier directions and addressed her mind (including during periods when she was feeling well enough to do so) to her evidence-in-chief; she could have confirmed at\u00a0a\u00a0much earlier point her evidence-in-chief was limited to the particulars of claim (including the additional comments). Had she done that, there would have been no need for the respondent to apply for an unless order (\u2026) The claimant's reconsideration application on\u00a013\/2\/2020\u00a0was the first time she raised the possibility that she had nothing further to add to her interim statement. That was not however the case when the claimant sent the statement on\u00a018\/11\/2019." 25. On\u00a01\u00a0December\u00a02020\u00a0a\u00a0preliminary hearing took place before Employment Judge Siddall at which the claimant's application for reinstatement was considered but refused for the reasons provided in\u00a0a\u00a0decision sent to the parties on\u00a02\u00a0December\u00a02020. The grounds of appeal and the claimant's submissions 26. By her first ground of appeal the claimant says that the ET erred in law in determining that there had been material non-compliance with the unless order. By ground two, she complains that the ET erred in refusing to put in place reasonable adjustments in order to enable her to be on an equal footing with the respondent. By ground three, the claimant complains that (in the ET\u2019s letter of\u00a030\u00a0January\u00a02020) there had been a breach of natural justice\u00a0in failing to identify the Judge who had made the decision at the hearing on\u00a02\u00a0December\u00a02019. By ground four, she further complains that this denied the claimant her right to\u00a0a\u00a0fair hearing. 27. In relation to the material compliance ground of appeal, the claimant says that the claim should not be lightly ruled out on\u00a0a\u00a0procedural technicality, in particular where complaints about lawful discrimination are concerned: see Anyanwu v South Bank Student Union [2001] UKHL\u00a014\u00a0at [24]. The claimant makes the point that compliance with an unless order need not be absolute, and an ET should not dismiss\u00a0a\u00a0claim for non-compliance unless the parties have had\u00a0a\u00a0fair opportunity to address the point. Moreover, considering the question of compliance required careful consideration of the terms of the unless order in question; in the present case it was the claimant's submission that she had complied with the unless order in sending her statement to the respondent on\u00a018\u00a0November\u00a02019 – in her covering email, and at the beginning of the statement, the claimant had explained that the statement was submitted "in the interim" while she was awaiting the outcome of her\u00a07\u00a0November\u00a02019\u00a0application to vary the unless order. It was the claimant\u2019s contention, however, that the statement was intended to be in compliance with the unless order. It was only \u201cinterim\u201d in the sense that she would have wished to add to it if her application to vary was successful. It would not be unusual for\u00a0a\u00a0party in litigation to submit\u00a0a\u00a0document in compliance with an order while at the same time challenging that order and reserving their right to submit further documents in the event that the challenge was successful. Given that the statement was\u00a0a\u00a0witness statement within the meaning of the unless order, the claimant had materially complied with the order and there was accordingly no legal basis for the immediate dismissal of her claim. 28. In order to make good the claimant's fair hearing grounds of challenge, it is further explained that, in the few days prior to\u00a02\u00a0December\u00a02019, the claimant's husband (who had\u00a0a\u00a0history of cancer) had experienced rectal bleeding and, on\u00a01\u00a0December\u00a02019,\u00a0had to attend A&E in relation to this. It is said that at around this time the claimant was herself suffering from incontinence and, given her own medical conditions, was relying on her husband to drive her to the ET on Monday,\u00a02\u00a0December. It was against this background that, on\u00a01\u00a0December\u00a02019,\u00a0she applied to the ET for the hearing to start at\u00a011:00\u00a0am rather than\u00a010:00\u00a0am, albeit that was\u00a0a\u00a0point she had already raised in her application of\u00a07\u00a0November\u00a02019. Having received no response from the ET, she had repeated her request shortly after\u00a010:00\u00a0am on\u00a02\u00a0December\u00a02019, also informing the ET that she would be late due to her disabilities. 29. While being driven to the ET that morning, the claimant said she rang and checked her email had been referred to the presiding Employment Judge and was told that it had. It is said that she explained to the ET staff that she would be attending but was going to be late. At around\u00a011:00\u00a0am, the claimant says she received\u00a0a\u00a0call from the case clerk who told her not to come to the ET because\u00a0a\u00a0decision had been made. I pause in the claimant's narrative to note that, from the times recorded by those acting for the respondent, it in fact appears that the ET hearing had lasted between\u00a011:04\u00a0am until shortly before\u00a011:30\u00a0am, which would suggest that any second call from the ET to the claimant must have been at some time around\u00a011:30 am\u00a0that morning. In any event, it is the claimant's case that, but for what she was told in this second \u2018phone call, she would have reached the ET by noon. 30. On grounds\u00a02\u00a0and\u00a04, it is the claimant's case that the ET should have borne in mind that she suffers from various physical and mental illnesses and disabilities and that her delay in attending on\u00a02\u00a0December\u00a02019\u00a0could have been (and was) caused by her illnesses and disabilities, and that, further, she was acting as\u00a0a\u00a0litigant in person. She submits that the ET should be ready to provide extended time for compliance with case management steps and she should have been given extra time to consider and make submissions on the issue of material non-compliance; the ET had, however, failed to afford her that opportunity on the morning of\u00a02\u00a0December\u00a02019. 31. As for ground three, the ET in its letter of\u00a030\u00a0January\u00a02020\u00a0had failed to identify the judge who had made the decision, or when the decision had been made, which was\u00a0a\u00a0breach of the principle of open justice and (ground four) unfair. The respondent's submissions 32. For the respondent it is said that this appeal stands or falls on ground one; the fairness grounds could not provide\u00a0a\u00a0basis for allowing the appeal. 33. Considering then ground one and the issue of material non-compliance, the respondent submits it would be wrong to adopt\u00a0a\u00a0different approach for discrimination claims in this regard; dismissal of\u00a0a\u00a0claim for non-compliance with an unless order was different to the striking out of\u00a0a\u00a0claim as having no reasonable prospect of success. As for the construction of the unless order, the EAT was bound to adopt a qualitative approach, having regard to the legal and procedural context which would be relevant to any understanding of what the order required: see paragraph 44 of Wentworth-Wood & Others v Maritime Transport Limited UKEAT\/0316\/15\/JOJ. In the present case, although the claimant was acting in person, she had brought\u00a0a\u00a0number of other ET claims (at least nine to the respondent\u2019s knowledge), and the ET was entitled to take the view that she was aware of what was required of her; that was part of the relevant context: see per Elias P (as he then was) at paragraph 33 EB v BA [2008] UKEAT\/0139\/08 and UKEAT\/0138\/08. It was apparent that the claimant was seeking to rely on her interim statement to avoid the consequences of the unless order, but was aware that it was insufficient as it failed to deal with the issues and the evidence in the case. In these circumstances, the ET had been entitled to conclude that there had been material non-compliance. 34. As for the fair hearing grounds of appeal, there had been no unfairness in the ET deciding to proceed with the decision on the question of compliance with the unless order at the hearing on\u00a02\u00a0December\u00a02019\u00a0in the claimant's absence. It had waited until shortly after\u00a011:00\u00a0am before starting the hearing, in accordance with the adjustment requested by the claimant, and was not bound to wait for longer or to adjourn the hearing to be addressed by written submission or at some future date. As for the failure to inform the claimant of the identity of the judge and\/or lay members who had made the decision and when it had been made, while accepting that information should have been given, this was not\u00a0a\u00a0substantive error and was in any event corrected subsequently on the claimant's application for reconsideration. The legal framework 35. By rule\u00a038(1) and (2) of Schedule\u00a01\u00a0of the Employment Tribunals (Constitution and Rules of Procedure) Regulations\u00a02013\u00a0(ET Rules), it is provided as follows: "Unless orders 38.\u2014(1)\u00a0An 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\u00a0a\u00a0claim 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\u00a0a\u00a0result of such an order may apply to the Tribunal in writing, within\u00a014\u00a0days 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\u00a0a\u00a0request for\u00a0a\u00a0hearing, the Tribunal may determine it on the basis of written representations. (\u2026)" 36. An unless order is\u00a0a\u00a0necessary and useful case management tool that can assist the ET in ensuring that the case before it proceed to\u00a0a\u00a0fair hearing; as Langstaff P recognised in Johnson (although there addressing the issue of particularisation of\u00a0a\u00a0claim rather than an order for the exchange of witness statements): "Cases where one party defiantly refuses to accept\u00a0a\u00a0judicial view of what is needed to ensure\u00a0a\u00a0fair hearing, such that no fair hearing can be arranged, resulting in the dismissal of the case without\u00a0a\u00a0hearing on the merits, will be rare, particularly where case management powers have been exercised with\u00a0a\u00a0view to holding\u00a0a\u00a0just hearing. Nonetheless, it must recognised [sic] that they do exist where\u00a0a\u00a0claim or\u00a0a\u00a0response leads to uncertainty about what is being alleged so that the other party does not sufficiently know what they must grapple with.\u00a0 One way in which case management powers can be exercised in such\u00a0a\u00a0case is to order particulars of the claim or response to be given.\u00a0 If they are not given in response to such an order, whether through misunderstanding, mental illness, lack of awareness of that which the other party will need to meet the claim or response, or\u00a0a\u00a0deliberate refusal or failure to comply an Unless Order may be made.\u00a0 If such an order is not complied with within its terms by the date set out in the Order, the claim or response will stand struck out without the need for any further order.\u00a0Thus in\u00a0Marcan Shipping (London) Ltd v Kefalas & Another\u00a0[2007] EWCA Civ\u00a0463, also reported\u00a03\u00a0All ER\u00a0365, at paragraph\u00a034\u00a0Pill LJ said: 'In my view it should now be clearly recognised the sanction embodied an in Unless Order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect.'" 37. As HHJ Auerbach identified at paragraph 24 Ijomah v Nottinghamshire Healthcare NHS Foundation Trust [2020] UKEAT\/0289\/19, under rule\u00a038 there are potentially three distinct decision points for the ET: first, the decision to make the unless order; second, the decision in the event of\u00a0a\u00a0dispute as to whether the unless order has been complied with; and, if there has been\u00a0a\u00a0failure to comply so that the unless order has bitten and if there is then an application for relief under rule\u00a038(2), thirdly, the decision on that application. 38. Although rule\u00a038\u00a0does not require any further order to be made when\u00a0a\u00a0claim is dismissed for non-compliance with an unless order, it is provided that written notice shall be given confirming what has occurred. In some cases, the fact of compliance or not will be obvious. In others, it will be rather more open to question and the question of compliance will require\u00a0a\u00a0judicial decision. In carrying out that determination, the ET will be bound to approach its task with the overriding objective in mind; that is, to deal with the case fairly and justly, which would include (most relevantly) ensuring (so far as is practicable) that the parties are on an equal footing, dealing with the case in\u00a0a\u00a0way that is proportionate to the complexity and importance of the issues, avoiding unnecessary formality, and seeking flexibility in the proceedings. 39. As HHJ David Richardson observed in Wentworth-Wood v Maritime Transport at paragraph 55: "An Employment Judge, before causing notice to be given under Rule\u00a038(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\u2019s 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\u00a0a\u00a0case the Employment Judge is entitled to give notice without further reference to the parties. But if there is doubt – for example in\u00a0a\u00a0case 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\u00a0a\u00a0hearing. Fairness requires that if the matter is to be considered at\u00a0a\u00a0hearing the parties concerned should have sufficient notice of the issue to prepare for it." 40. In Uwhubetine and Njoku v NHS Commissioning Board England and others [2019]UKEAT\/0264\/80, HHJ Auerbach provided the following helpful guidance: "45. 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\u00a0a\u00a0meaning 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\u00a0a\u00a0qualitative rather than\u00a0a\u00a0quantitative test. In\u00a0a\u00a0case 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. 47. Finally, the Rules do not require any particular formalities to be observed in relation to the process for determining whether there has been non-compliance with an Unless Order, leading, if non-compliance be found, to\u00a0a\u00a0written notice confirming that the relevant pleading has been dismissed in accordance with it. This is something that can potentially be done by\u00a0a\u00a0Judge on paper without\u00a0a\u00a0hearing, although\u00a0a\u00a0Judge may decide to invite written submissions and\/or to convene\u00a0a\u00a0hearing, before making that determination. The obligation on the Tribunal, whichever route it goes, is to comply with the overriding objective. \u2026 49. Further, if the conclusion is that the Order has\u00a0not\u00a0been complied with, and\u00a0has\u00a0taken effect, although that will have occurred automatically, there is an obligation on the Tribunal to issue\u00a0a\u00a0written notice to the parties confirming what has occurred. That is both because that is what Rule\u00a038(1) says and because it is the issuing of such\u00a0a\u00a0written notice that triggers the right of\u00a0a\u00a0party to make an application under Rule\u00a038(2) to have the Order set aside on the basis that it is in the interests of justice to do so. That is why such an application is treated, as the authorities confirm, as an application for relief from sanctions, as opposed to\u00a0a\u00a0freestanding challenge to the original Order having been made in the first place." 41. I further note that, although there are no particular formalities laid down in terms of the process that is to be followed for determining whether there has been material compliance, and that there is no requirement for any further order, or even for the confirmation of the dismissal of the claim, rule\u00a061\u00a0of the ET Rules requires that\u00a0a\u00a0written record be provided, signed by the Employment Judge. 42. Returning then to the task required of the ET in determining whether the terms of an unless order have been met, it is necessary to ask whether there has been compliance in\u00a0a\u00a0material respect. As Langstaff P went on to explain in Johnson at paragraph 7: "(\u2026) it draws attention to the purpose for which compliance with the order is sought; that it is within\u00a0a\u00a0context.\u00a0 What is relevant, i.e. material, in such\u00a0a\u00a0case 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.\u00a0 To use the word \u2018substantial\u2019 runs the risk that it may indicate that\u00a0a\u00a0quantitative approach should be taken: thus, where\u00a011\u00a0matters must be clear to enable\u00a0a\u00a0party to deal fairly with\u00a0a\u00a0claim, of which\u00a09\u00a0have been provided but not\u00a02, which remain necessary, compliance has not\u00a0materially\u00a0been provided because the purpose of seeking compliance has not been achieved in the context; the other party still cannot obtain\u00a0a\u00a0fair trial.\u00a0 To adopt\u00a0a\u00a0quantitative approach may erroneously lead the Judge in such\u00a0a\u00a0case to conclude that there had been sufficient compliance (9\u00a0out of\u00a011) even if the further particulars remained necessary before\u00a0a\u00a0fair trial could take place.\u00a0 Substantial compliance has thus in my view to be understood as equivalent to material compliance not in\u00a0a\u00a0quantitative but in\u00a0a\u00a0qualitative sense." 43. Thus, context will always be important. Where\u00a0a\u00a0party has agreed that some of the matters included within a\u00a0long list of allegations are in fact irrelevant, and has been required to state which are no longer relied on, simply responding that "all are still being pursued" would not amount to material compliance with the order: see EB v BA per Elias P at paragraph 33. On the other hand, where the terms of the unless order are materially complied with, the fact that this merely exposes the weaknesses of the claim will not provide\u00a0a\u00a0basis on which that claim could be dismissed for non-compliance (although, of course, that might then lead to an application for the claim to be struck out on other grounds). 44. As for the approach to be adopted on any appeal, when considering\u00a0a\u00a0challenge that is specifically and solely against\u00a0a\u00a0ruling on whether an unless order has been complied with, the EAT is concerned only with whether that particular decision has been made in error of law; it is not for an appellate tribunal to seek to substitute its decision or view for that of the first instance tribunal, which is likely to be best placed to determine whether there has been material compliance in these circumstances. Discussion and conclusions 45. The appeal in this case is brought against the ET's letter of\u00a030\u00a0January\u00a02020,\u00a0confirming that the claimant's claim had been dismissed due to her non-compliance with the unless order of\u00a024\u00a0October\u00a02019. The main focus of the claimant's argument on appeal can be put fairly straightforwardly. She says that the ET erred in law in determining that there had been material non-compliance with that order; she further complains, however, that in proceeding to determine this question at the hearing on\u00a02\u00a0December\u00a02019,\u00a0in her absence, the ET erred in its approach, denying her\u00a0a\u00a0fair hearing or\u00a0a\u00a0further opportunity to make representations on this question, and failing to make the necessary adjustments that were required, given her particularly vulnerabilities as\u00a0a\u00a0litigant in person with various disabilities. 46. I can deal with the fair hearing challenge fairly shortly. Accepting that the claimant was acting in person, and had health issues that might reasonably be understood to impact on her ability to engage with the ET proceedings without some adjustments being made, I am satisfied that there was no unfairness in the process followed in this case. The history of the proceedings demonstrates that the ET had given the claimant further time to comply with its directions at various stages. Moreover, on the morning of\u00a02\u00a0December\u00a02019, the commencement of the hearing was delayed, as the claimant had requested, until\u00a011:00\u00a0am. The claimant had not asked for\u00a0a\u00a0further delay to sometime after\u00a0noon and, on the information before it, the ET made an entirely permissible case management decision to proceed in her absence. 47. The ET was not, moreover, bound to adjourn the hearing to permit written representations to be made on the question of non-compliance, nor, given the information provided to it on the morning of the hearing, was it required to take further steps to enquire as to the claimant's whereabouts. A different ET might have adopted\u00a0a\u00a0different approach, but it cannot be said that the course taken by this ET, given the circumstances with which it was faced, was such that it denied the claimant\u00a0a\u00a0fair hearing, nor can it properly be said to have been perverse. 48. An issue does arise in relation to the failure to communicate the ET's decision, which was apparently taken at the hearing of\u00a02\u00a0December\u00a02019: that being so, it would appear that rule\u00a061\u00a0of the ET Rules should have been complied with. I am, however, not persuaded that this gives rise to any substantive issue in this case, given that the omission to identify the Employment Judge concerned was rectified at the reconsideration stage. 49. I turn therefore to the substantive decision taken by the ET to dismiss the claimant's claim for non-compliance with the unless order of\u00a024\u00a0October\u00a02019. In approaching this question I agree with the respondent that the requirement laid down in that order has to be seen in its legal and procedural context. In this regard, it is right to note that the claimant had previously fail to comply with the ET's directions and orders on\u00a0a\u00a0number of previous occasions, including in relation to the exchange of witness statements. It is also the case that the ET proceedings related to events that had taken place in\u00a02017,\u00a0and there had been\u00a0a\u00a0significant delay in proceeding to\u00a0a\u00a0hearing (although not all the reasons for that delay can be seen as due to the claimant). 50. Having had regard to those aspects of the procedural context, however, I have also had regard to the context of the claim itself. This was\u00a0a\u00a0claim which related to the withdrawal of\u00a0a\u00a0job offer. In contrast with many cases where allegations are made over\u00a0a\u00a0lengthy period relating to the history of the claimant's employment, the claimant's case here was rather more basic. She was relying on the circumstances of the withdrawal of the job offer as providing the basis of her claims of unlawful discrimination. For the respondent, on the other hand, it was said that the withdrawal related to inconsistencies that had been found when carrying out the pre-employment checks, and was unrelated to any of the protected characteristics, or protected disclosures, relied on. The case before the ET was thus focused on\u00a0a\u00a0quite specific factual matrix and the issues to be determined were very much more limited than might more generally be the case in\u00a0a\u00a0claim of discrimination or protected disclosure detriment. 51. It is also relevant that this was not\u00a0a\u00a0case where there was\u00a0a\u00a0history of orders requiring the claimant to provide further particulars of her claim. It would seem that the case she was pursuing was understood. The ET's desire was to ensure that the evidence that would be adduced for the determination of that case had been provided sufficiently far in advance to enable\u00a0a\u00a0fair hearing. It was in that context that the timely exchange of witness statements was important. It had not been identified in the unless order (or at any relevant earlier stage) that the claimant was required to provide further particulars of her case so that the respondent might understand the case that it had to meet. 52. Although not\u00a0a\u00a0point that either side has focused on, it may also be relevant for me to note that the claimant had apparently provided her disability impact statement. That would seem to have been undertaken at an early stage of the proceedings and I cannot see that it was suggested that that statement was inadequate in any way. 53. The requirement laid down by the unless order was that the claimant send her witness statement to the respondent on\u00a018\u00a0November\u00a02019\u00a0as part of an exchange of statements. The order itself did not lay down any further requirements as to the\u00a0form that the statement was to take or as to its content, but there had been an earlier direction explaining that it was to be in numbered paragraphs, on numbered pages, in chronological order and should, when referring to\u00a0a\u00a0document, reference the relevant page number in the hearing bundle. More generally, and more substantively, the statement was to "set out all the facts about which\u00a0a\u00a0witness intends to tell the tribunal relevant to the issues \u2026" 54. Although the claimant had applied for the unless order to be varied, she had received no response to that application by the date on which she was required to comply with the order. On\u00a018\u00a0November\u00a02019\u00a0she then purported to comply with the unless order by sending her "statement submitted in the interim \u2026 while claimant is awaiting ET response to\u00a007\u00a0of\u00a02019\u00a0claimant's application". 55. The document the claimant provided then set out the facts as she saw them, in chronological form, and in consecutively numbered paragraphs. It is true to say that this was substantially the text of the claimant's particulars of claim attached to her ET1\u00a0but otherwise it was\u00a0a\u00a0statement that, on its face, met the terms of the order that had been made. 56. The respondent has said that even if this was compliance in form it was not material compliance: the claimant had never previously said that her statement would be limited to her grounds of claim, and she was clearly presenting this as an interim statement, presumably with the intention of adding to it at some later stage. In particular, the respondent points out that, by simply relying on her original particulars of claim, the claimant had failed to engage with the issues in the case, specifically as identified in the respondent's grounds of resistance, especially in her failure to address the inconsistencies between her application and what the respondent said had been discovered in the pre-employment checks, which was the reason for the withdrawal of the job offer. 57. In these latter respects, it seems to me that the respondent's submissions confuse material compliance with the merits of the case on the evidence provided by the claimant. It may well be that the claimant's statement did not address the issues raised in the grounds of resistance, but that might be because the claimant did not have an answer she could give. The fact that her statement might thus be considered to have exposed the weaknesses in her case did not mean, however, that the claimant had failed to comply with the unless order in\u00a0a\u00a0material respect. 58. The basis of the ET's decision on material non-compliance was itself explained in the reconsideration decision. The Employment Judge had (understandably) been concerned that this appeared to have been presented as an interim statement,\u00a0a\u00a0holding position, to simply ensure formal compliance with the unless order, and was not in fact the statement the claimant intended to use at the hearing. I can understand that concern and can see that the ET was anxious to ensure there was a mutual exchange of witness statements, so that no party was potentially prejudiced by having handed over their witness testimony without receiving, at the same time, that relied on by the other side. That said, the justification for the decision on material non-compliance (as provided by the Employment Judge) suggests that the ET was thereby using the unless order to penalise the claimant for failing to do more than had actually been required of her. On its face, the claimant had complied with the order. If the ET was concerned that she would then seek to add to her evidence by submitting\u00a0a\u00a0further statement at\u00a0a\u00a0later date, and\/or by seeking to add to her evidence in chief, then it had other case management powers at its disposal to prevent that (it could simply order that the evidence in chief should be limited to that given in the witness statements). 59. The difficulty appears to have arisen from the way in which the ET read the claimant\u2019s communications as describing this as an \u201cinterim statement\u201d. That is not in fact the language used by the claimant; she described this as\u00a0a\u00a0"statement in the interim", referring to her outstanding application to vary the terms of the unless order. It was not suggested that she would not rely on this statement if she failed in her application. If no further time was permitted for the claimant to be able to draft\u00a0a\u00a0fuller statement, then this was her statement for the purpose of the ET hearing. There was no requirement on the claimant to provide\u00a0a\u00a0statement that did more than had been set out in her particulars of claim (as attached to her ET1); indeed, it may have been impossible for her to do any more than to provide those particulars. 60. Given that context, as has been pointed out at this hearing, the claimant was in reality doing no more than any litigant might in circumstances in which there is an outstanding application to vary an order which has not been addressed by the ET by the date for compliance with that original order. Ensuring that she complied with the strict terms of the unless order in this context was not merely\u00a0a\u00a0matter of form but was\u00a0a\u00a0substantive way of providing the claimant\u2019s statement, as she was required to do, notwithstanding that she might have wished to provide\u00a0a\u00a0fuller statement had she been given the time to do so. 61. The error made by the ET is revealed by its reasoning at the reconsideration stage. As the ET then acknowledged, had the claimant simply said at any earlier stage that she was merely seeking to rely on the particulars of claim attached to her ET1, there would have been no need for an unless order, let alone for the dismissal of her claim as failing to comply with such an order. Substantively, therefore, the ET was recognising that, by providing this document on\u00a018\u00a0November\u00a02019, the claimant had provided her witness statement. The only difficulty that the ET had identified was in the reference to this being provided in the interim, erroneously construing that to mean that this was an interim statement. The ET penalised the claimant for simply doing as any litigant might, which was to reserve her position (as it might be) should she be successful on her application for variation which might then give her more time to provide further information). What the claimant was not purporting to do was to provide\u00a0a\u00a0statement on which she would not in fact rely should her application for variation be refused. 62. In the circumstances, therefore, I accept the claimant's argument that the ET in this case erred in law in finding there had been material non-compliance and, therefore, in purporting to dismiss the case for non-compliance with the unless order. I therefore allow the appeal.<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

SUMMARY PRACTICE AND PROCEDURE \u2013 dismissal of claim for non-compliance with unless order \u2013 rule 38 Schedule 1 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013(\u201cthe ET Rules\u201d) \u2013 fair hearing The claimant, who was acting in person and had various health issues that meant that she needed adjustments to enable her to engage with the Employment Tribunal (\u201cET\u201d)…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8355],"kji_chamber":[],"kji_year":[36297],"kji_subject":[7612],"kji_keyword":[7643,7916,7707,11149,10654],"kji_language":[7611],"class_list":["post-676328","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-employment-appeal-tribunal","kji_year-36297","kji_subject-fiscal","kji_keyword-claimant","kji_keyword-hearing","kji_keyword-order","kji_keyword-statement","kji_keyword-unless","kji_language-anglais"],"yoast_head":"\nN Leeks v Brighton and Sussex University Hospitals NHS Trust - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\/\" \/>\n<meta property=\"og:locale\" content=\"zh_CN\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N Leeks v Brighton and Sussex University Hospitals NHS Trust\" \/>\n<meta property=\"og:description\" content=\"SUMMARY PRACTICE AND PROCEDURE \u2013 dismissal of claim for non-compliance with unless order \u2013 rule 38 Schedule 1 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013(\u201cthe ET Rules\u201d) \u2013 fair hearing The claimant, who was acting in person and had various health issues that meant that she needed adjustments to enable her to engage with the Employment Tribunal (\u201cET\u201d)...\" \/>\n<meta property=\"og:url\" content=\"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\/\" \/>\n<meta property=\"og:site_name\" content=\"Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"\u9884\u8ba1\u9605\u8bfb\u65f6\u95f4\" \/>\n\t<meta name=\"twitter:data1\" content=\"41 \u5206\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\\\/\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\\\/\",\"name\":\"N Leeks v Brighton and Sussex University Hospitals NHS Trust - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/#website\"},\"datePublished\":\"2026-04-24T21:38:44+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\\\/#breadcrumb\"},\"inLanguage\":\"zh-Hans\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\\\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/n-leeks-v-brighton-and-sussex-university-hospitals-nhs-trust\\\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Jurisprudences\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/\"},{\"@type\":\"ListItem\",\"position\":3,\"name\":\"N Leeks v Brighton and Sussex University Hospitals NHS Trust\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/#website\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/\",\"name\":\"Kohen Avocats\",\"description\":\"Ma\u00eetre Hassan Kohen, avocat p\u00e9naliste \u00e0 Paris, intervient exclusivement en droit p\u00e9nal pour la d\u00e9fense des particuliers, notamment en mati\u00e8re d\u2019accusations de viol. 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