Appeal No. UKEATS/0038/12/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 17 October 2012

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

SCOTTISH AMBULANCE SERVICE	APPELLANT

MR JOHN LAING	RESPONDENT

JUDGMENT

	APPEARANCES

For the Appellant	MR ANDREW BROWN
(Solicitor)
Anderson Strathern LLP Solicitors 
1 Rutland Court 
Edinburgh
EH3 8EY	
For the Respondent	MR RUSSELL BRADLEY
(Advocate)
Instructed by:
Digby Brown LLP Solicitors
2 West Regent Street 
Glasgow 
G2 1RW	

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal

Unless Order.  Tribunal erred in failing to appreciate that their ‘Unless Order’ was a conditional judgment - it had no discretion to do other than confirm dismissal of the claim in the event of non-compliance by the Claimant.  Further, in the circumstances, it was not open to the Tribunal to do other than conclude that there had been no compliance.  Appeal upheld and claim dismissed.

THE HONOURABLE LADY SMITH 
Introduction
1.	This is an employer’s appeal from a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge Mr N M Hosie, in which he stated a refusal to strike out a claim at a Pre Hearing Review.  The judgment was registered on 23 April 2012.

2.	For convenience, I will continue to refer to parties as Claimant and Respondent.

3.	The Claimant was represented by Mr D Jaap, solicitor before the Tribunal and by Mr Bradley, advocate, before me.  The Respondent was represented by Mr A Brown, solicitor before the Tribunal and before me.

Background
4.	The Claimant used to be employed by the Respondent.  It provides ambulance services in Scotland.  He presented a form ET1 to the Tribunal on 17 November 2009 in which he claimed that he was owed “other payments” (see part d of part 5.1 of the ET1).  In part 5.2, he stated:

“2. Withdrawn an allowance without consultation and in breach of my contract and the Agenda for Change 
3. Refused to pay this allowance which has led to me suffering ongoing deduction as colleagues (Ambulance Staff) as opposed to Patient Transfer Staff, still receive the payment.
In a letter dated 16th Dec we were told to take a 30min unpaid meal break.  Due to the Control of Infection Policy we are not able to carry prepared food so have no choice other than to buy food on location.  Initially this was not a problem as the service paid subsistence for meals taken at Raigmore hospital.  However, in late 2006, this payment was suspended while management sought a clearer understanding of the definition of ‘away from base over (5) hours meant, as outlined in the Agenda for Change Policy Guidelines.  In Jan 2007 unpaid subsistence sheets were returned to me and I submitted a grievance which was acknowledged on the 19th February 2007.”

5.	Following a Case Management Discussion in September 2011, the Employment Judge issued an order for additional information dated 27 September 2011 which was in the following terms:

“		ORDER FOR ADDITIONAL INFORMATION
1.	The dates on which the claimant claims there was an entitlement to subsistence allowance which has not been paid.
2.	How much he claims is due for each day.
3.	With specific reference to his contract and the appropriate policies, the basis on which he claims that the subsistence allowance is due for each of those days.”

6.	Information was provided in response to parts 1 and 2 of the order of 27 September 2011 but not in response to part 3.  The information provided in relation to parts 1 and 2 included a claim form which the Claimant had completed, dated 30 November 2007 in which he had declared that “the charges made are in accordance with the current Agenda for Change regulations in force.”  By email dated 14 October, the Respondent’s solicitor intimated an application for an “Unless Order” for the Claimant to provide the information specified in part 3 within 7 days.  That application was made to the Tribunal and intimated to the Claimant’s solicitor.  The Tribunal was evidently satisfied that it was appropriate to issue the order sought since Employment Judge Hosie issued an order dated 1 November 2011 in the following terms:

“ORDER TO PROVIDE ADDITIONAL INFORMATION
Employment Tribunal Rules of Procedure 2004
In accordance with the power set out in Rule 10 of the Employment Tribunal Rules of procedure 2004 an Employment Judge ORDERS that:  - 
On or before 8 November 2011 you provide the secretary of the Tribunal at the address shown in the enclosed letter and Anderson Strathern LLP, 1 Rutland Court, Edinburgh, EH3 8EY with the additional information set out in the attached schedule.
Unless this order is complied with the claim shall be struck out on the date of non compliance without further consideration of the proceedings and without any further warning or hearing taking place.
…………………
			Schedule 
With specific reference to his contract and the appropriate policies, the basis on which the claimant claims that the subsistence allowance is due for each of those days.”

7.	Thus, the content of that order was a direct reflection of part 3 of the earlier order of 27 September but subject to the warning that failure to produce that information within the stated timescale would result in the claim being struck out automatically.

8.	The Claimant’s solicitor responded to that order by email dated 7 November 2011.  The content of the response was:

“We refer to your letter of 1 November 2011.
In relation to the further information requested we can advise that Mr Laing’s claim is founded upon the implied terms and conditions during his period of employment with the Respondent.  It is advised that Mr Laing has never had sight of any written terms and conditions, however it is maintained that these terms were held to be implied due to habit and circumstance.”

9.	The Respondent did not accept that that letter constituted compliance with the “Unless Order”.  By email dated 9 November 2011, the Respondent’s solicitor wrote to the Employment Tribunal requesting confirmation that the claim had been struck out given the lack of information supplied by the Claimant in the email of 1 November.

10.	The Claimant’s representative was asked for comments in relation to the Respondent’s solicitor’s email of 9 November.  Then, between 15 and 17 November 2011, email correspondence occurred between parties and the Tribunal on the issue of whether or not the order had been complied with.

11.	The Employment Judge held a Case Management Discussion on 9 December 2011 at which he allowed representations to be made by both parties.  He then issued a letter dated 12 December 2011 indicating that he was inclined to the view that the “Unless Order” had been complied with and his preliminary view was that the case should proceed to a full hearing.  However, he also invited comments from parties.  Email correspondence again ensued.  The upshot was that the Tribunal then fixed a PHR.  The Tribunal indicated that the purpose of the PHR would be to consider “whether the claim should be struck out”.  The Respondent’s solicitor responded to that by email dated 23 January 2012 stating that it was the Respondent’s position that, as a matter of law, the claim had already been struck out, that having happened automatically on 8 November 2011.  He was advised, by email of 24 January 2012, that the terms of that email had been noted by the Employment Judge.

The Letter of 15 November 2011
12.	By letter dated 15 November 2011 to the Respondent’s solicitor, the Claimant’s solicitor sought to provide a further response to the “Unless Order”.  In particular, he advised:

“1.	It is submitted that the original wording was perhaps not reflective of the situation.  It is submitted that the terms are express terms of the contract.  These terms were expressed to the Claimant verbally on a number of occasions.  Due to the informal nature of these expressions, the Claimant does not have specific dates or times to refer to.  However, the Claimant asserts that this was a continuing course of action.
2. The habit and circumstance to which the Claimant refers is the Claimant has previously received subsistence pay which was paid for the type of periods that he is now claiming.  This pay had been received on numerous occasions which can be documented should this be required.
3. In relation to each of the days in question, the terms were that if the Claimant was outwith his working station for a period of five hours over a mealtime period that any monies spent during this period would be reimbursed via subsistence pay.”

Pre-Hearing Review
13.	A PHR took place on 28 February 2012.  Despite the clearly reiterated position of the Respondent’s solicitor, it was said to be for the purpose of considering whether or not the Claimant’s claim should be struck out.

14.	The Tribunal issued a judgment stating that “the application for strike out of the claim is refused”.  The Employment Judge’s reasons for doing so appear to have been as follows:
•	Rule 13(2) of the Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“the Employment Tribunal Rules”) gives an Employment Judge the power to issue an “Unless Order” providing that if it is not complied with it will automatically be struck out on the date of non compliance;

•	The issue for him was whether or not the “Unless Order” had been complied with;

•	He had a discretion in the matter;

•	Compliance with an order which had as a deadline 8 November 2011 could not be achieved by the provision of information in a letter of 15 November 2011;

•	It was relevant to consider whether or not the Claimant had provided “fair notice” of his case and that involved having regard not only to the actual response to the “Unless Order” but also to “what had gone before” namely “what had already been produced by the Claimant’s solicitor by way of additional information and documentation either voluntarily or in response to other Orders” but, other than appearing to refer to what had been produced by the Claimant’s solicitor prior to the issuing of the “Unless Order”, he does not explain what information and documentation he had in mind;  

•	The distinction between pleadings and evidence had become blurred; as the Claimant’s solicitor had submitted, the claim was relatively straightforward.  That was a reference to his having stated that the Claimant would say in evidence that “I submitted these Expenses Claim Forms.  They were paid.  I submitted others.  They were not.” and that it was all a matter of custom and practice against a background of the Agenda for Change;

•	He required to be mindful of what he referred to as the “guidance” in the case of Mustafa v Guys and St Thomas’ NHS Foundation Trust UKEAT/0516/11 which was that strike out was a power that ought not readily to be exercised and that an “Unless Order” would not be breached unless the response fell significantly short of what was required;  and

•	He required to bear in mind the overriding objective which required him to decide cases justly and proportionately and strike out would not be proportionate.

Relevant Law 
15.	The power to issue an “Unless Order” was new to Employment Tribunals when first introduced in the Employment Tribunal Rules 2004 (see: rule 13(2)).  It is not to be confused with the strike out powers that are conferred by rule 18(7) where notice has to be given under rule 19 and the tribunal has a discretion whether or not to order strike out.  In the case of the “Unless Order”, the tribunal has no discretion – notice has been given in the order itself and if the order is not complied with then the claim or response is struck out as at the date of non- compliance without any further procedure being required or indeed provided for under the Employment Tribunal Rules.  The recipient of an “Unless Order” should be under no illusions – his claim or response will be struck out without further ado if he does not do as the tribunal directs him.  Further, partial compliance will not do: see e.g. Royal Bank of Scotland v Abraham UKEAT/0305/09/DM.  If there is a failure to comply whether wholly or partially, the tribunal cannot revisit its decision that failure to comply will result in automatic strike out.

16.	In the case of Uyanwa-Odu v Schools Offices Services Ltd UKEAT/0294/05 HHJ Peter Clark said:

“25. In our view, a Rule 13(2) unless order amounts to a conditional judgment.  It becomes a final determination of the proceedings if the party fails to comply with the underlying order.”

17.	I agree with that analysis (which was applied again by HHJ Peter Clark in the case of Neary v The Governing Body of St Albans Girls School and anr UKEAT/0281/08) and note that it accords with the analysis of the Court of Appeal in relation to the very similar power provided for under the CPR that was set out in the case of Marcan Shipping (London) Ltd v Kefalas and another [2007] 1WLR 1864 where, as Moore-Bick LJ said:

“28…….rule 3.8(1) expressly provides that where a party has failed to comply with an order any sanction imposed by the order has effect unless the party in default applies for and obtains relief from the sanction.  This makes it clear, in my view, that no further order is required to render the sanction effective; on the contrary the onus is on the defaulting party to take steps to obtain relief …
…
29…….the operation of the sanction does not lie in the discretion of the court; only if there is an application under rule 3.8 is the court required to consider whether, in all the circumstances, it is just to make an order granting relief from the consequences that would otherwise follow …
………
34 ….it should now be clearly recognised that the sanction embodied in an ‘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…  It must be assumed that at the time of making the order the court considered all the relevant factors and reached the decision that the sanction should take effect in the event of default.”

18.	The Court of Appeal thus determined that it was not appropriate for it to hear argument about whether or not strike out was an appropriate response to the failure to comply with an “Unless Order” because that was the consequence for which the order itself had provided.  In particular, it was not an opportunity for the defaulting party to make a back door application for relief.

19.	That approach was referred to with approval in an appeal from this Tribunal before the Court of Appeal  in the case of Chikwudebelu v Chub Security Personnel Ltd [2008] EWCA Civ 327 where, at paragraph 38, Pill LJ said:

“An unless order takes effect it is not complied with.  It does not require a further order addressed to the party against whom the order was made.”

and observed that where HHJ Reid had, in his order, confirmed that the claim was struck out he was doing no more than that i.e. providing confirmation of something which had happened automatically.

20.	It is open to a tribunal to review the granting of an “Unless Order” itself under rule 34 of the Employment Tribunal Rules – as observed by HHJ Peter Clark in Uyanwa-Odu - but no such application was made in this case.

21.	The granting of an “Unless Order” being a decision of an employment tribunal, it is also appealable to this Tribunal on a point of law: Employment Tribunals Act 1996 s.21.  No such appeal was presented in this case.

22.	I should also refer to QPS Consultants Ltd v Kruger [199] BLR 366 and Mustafa since both were relied on by the Employment Judge and by the Claimant in the appeal.  QPS was not an employment litigation.  It concerned a claim by engineers who sued, in the Technology and Construction Court, for fees.  It was pre CPR.  Whilst orders for further and better particulars could be issued in “Unless” form, the case pre-dates the modern case management culture, an aspect of which is to use tools of compulsion which ‘bite’ effectively.  It is against that background that the judgments of the Court of Appeal must, it seems to me, be read.  I was referred to page 371, where Simon Brown LJ said:

“First, an order for further and better particulars (whether or not in Unless form) is not to be regarded as breached merely because one or more of the replies is insufficient.  If the answers could reasonably have been thought complete and sufficient, then the correct view is that they require only expansion or elucidation for which a further order for particulars should be sought and made.
Secondly, although I would regard an Unless order as breached whenever a reply is plainly incomplete or insufficient, I would not expect the court’s strike out discretion to be invoked, let alone exercised unless the further and better particulars considered as a whole can be regarded as falling significantly short of what was required.”

23.	The procedure that Simon Brown LJ had in mind appears to be different from that which applies to “Unless Orders” issued under rule 13(2) of the Employment Tribunal Rules; he plainly has in mind the question of whether or not to strike out remaining open after the deadline for compliance has passed but that is not the case under rule 13(2) where all that remains at that point is to assess whether or not there has been compliance.

24.	I can deal with Mustafa briefly.  It is not in point.  The above passage from QPS was relied on by Wilkie J in this Tribunal.  However, the issue for him was, principally, whether or not the tribunal had erred in law in its refusal to grant a review in relation to the strike out of the claimant’s claim for discrimination.  As he observes at paragraph 34, the case before him was about “a granting of relief where by virtue of non compliance with an unless order claims had been automatically struck out.” Whilst there are indications of the claimant also seeking to argue that there had in fact been compliance, the discussion in the judgment centres on the considerations that would be relevant when considering whether or not to grant an application for review following automatic strike out having occurred after non-compliance with a rule 13(2) order.

25.	When the terms of rule 13(2) are considered in conjunction with the authorities as discussed above, the following seems clear.  First, on the first day after the deadline for compliance, an Employment Judge requires to determine, in chambers, whether or not the tribunal’s “Unless Order” has been complied with.  If it has then further procedure can be fixed.  If the decision is that it has not, then no further steps should be taken in the case if the failure is by the claimant; if the failure is the respondent’s then further procedure can be fixed but on the basis that the respondent is thereafter debarred from participating.  In the event that the tribunal decides that there has not been compliance, there is no need to issue any order although I cannot see that it would necessarily be wrong to issue an order confirming the judgment that the claim/response was struck out for non compliance with the “Unless Order” on the day after the deadline for compliance.

26.	It also seems clear that once the date for compliance with an “Unless Order” is passed, the onus is on the parties to communicate with the tribunal if they wish confirmation of their position, as the Respondent’s solicitor did in this case.  That ought not, however, be treated by the tribunal as an opportunity to revisit the question of whether or not the “Unless Order” should have been issued.

The Appeal
27.	In a clear and well structured submission, Mr Brown addressed me in support of his grounds of appeal.  He had two principal submissions: the Tribunal had erred in concluding that there had been compliance with the order of 1 November 2011 and erred in approaching matters on the basis that there was a discretion available which there was not.  He referred to the above authorities, particularly to demonstrate that strike out was automatic once there was non-compliance with an order, operating as a conditional judgment which became unconditional on the expiry of the deadline without compliance,  and that the relevant judge had no discretion in the matter.

28.	Regarding the issue of compliance, the Tribunal had erred in considering that the response must fall significantly short of what was required.  In so deciding, the Tribunal had relied on Mustafa - which, in turn, relied on the case of QPS - but the former concerned an application for review, not the issue of whether or not strike out had occurred and there had been reliance in Mustafa on the case of QPS whereas the later authorities demonstrated that it did not set out the modern approach that was appropriate in employment cases.  The correct approach was that which had been approved in Marcan.

29.	The Tribunal had also erred in considering that the underlying issue was one of fair notice.  It was not.  The only issue was whether or not there had been compliance.  There was no question of the Tribunal having explained how “what had gone before” satisfied the order of 1 November.  In any event, information provided prior to 1 November was of no relevance.  A claimant could not rely on what had gone before to support his case that he had complied with such an order.  The only document in the appeal bundle – an expenses claim form – did not, in any event, come anywhere near to complying with the order.

30.	Mr Brown turned to the Tribunal’s comments about the matter at issue being one for evidence.  That was on the basis of an indication given by the Claimant’s solicitor at the hearing but it was not open to the Tribunal to consider anything other than the response of 8 November.  The Tribunal ought to have concentrated on it and could only, had they done so, have concluded that the order of 1 November had not been complied with.  It was vague and wholly unspecific.  It did not begin to set out the basis for the claim which was entirely unclear.  Further, the letter of 15 November illustrated that it did not in fact set out what was the Claimant’s position namely that he was founding not on an implied term but on an express one.  The letter of 15 November did not go to compliance but it could be looked at when asking whether or not there had been compliance since it showed that his position was that he accepted that he had not complied with the order in the response of 8 November.
  
31.	He submitted that the response to the order of 1 November required to (i) articulate the term relied upon, (ii) narrate the ‘habit and circumstances’ relied on, and (iii) narrate the basis on which the Claimant asserted that, in relation to each day in question, the requirements of the implied term relied on were satisfied.  The response wholly failed to do so.  The only conclusion open to the Tribunal was that there had been no compliance and that, therefore, the claim was struck out on 9 November 2011.  That should have been confirmed by the Tribunal; there was no application for strike out before the Tribunal and the issue was not whether or not strike out ought to have been ordered at that time as he had sought to make clear at the hearing. As to disposal, Mr Brown submitted that there was no need for a remit.  The appeal should be allowed and I should determine the issue of compliance; it was plain, he submitted, that there had been none and that the claim had been struck out on 9 November 2011.

32.	For the Claimant, Mr Bradley moved that the appeal should be dismissed.  The Tribunal had provided adequate reasons and had not erred in law.  The documents that had “gone before” were not relied on as complying with the order but they were relevant; the Tribunal was entitled to look at matters in context.  What was required was a qualitative response from the Tribunal and that was what had occurred.  It was not, he said, an error to take account of what was said by the Claimant’s solicitor at the hearing.  Mr Bradley did not engage with the apparent contradiction between what was said by the Claimant’s solicitor and what was said in the letter of 15 November namely that the former was that the Claimant was relying on an implied term whereas the latter was that he was relying on an express term.

33.	Regarding the Tribunal’s references at paragraphs 51 to 53 to the guidance provided by Mustafa (and, impliedly, QPS), proportionality and discretion, these were a record of matters which were, he said unnecessary but did not detract from the essence of the judgment.  Mr Bradley said nothing further about the Tribunal’s reference to exercising a discretion (paragraph 53) despite opening his submissions by indicating that he accepted that strike out followed automatically if there was non compliance with an “Unless Order” and the Tribunal had no discretion in the matter.

34.	As to disposal Mr Bradley submitted that if the appeal was not dismissed there should be remit to the same Tribunal, which failing to a fresh one.  It was not for this Tribunal to determine the issue because compliance was a question of fact and there had been a voluminous inventory of paper lodged in the Tribunal that was not in the appeal bundle.  Further, a decision here would preclude the Claimant’s right of review.

Discussion and Decision
35.	I have no hesitation in deciding that this appeal should be upheld.  The Tribunal erred in several respects, possibly because of confusion between the principles applicable when deciding whether or not to order strike out under rule 18(7) of the Employment Tribunal Rules (where the tribunal has a discretion) and when rule 13(2) applies.  Whatever, however, the reason, I am satisfied of the following.  First, whilst initially addressing the correct question, namely had there been compliance with the order of 1 November – in which case, if there had not, the only outcome open to it was to confirm that the claim had already been struck out on 9 November - slipped into the wrong mindset.  Looking at matters in the round or in context, considering issues of fair notice, remembering that strike out was a power that ought not to be readily exercised, considering proportionality and reaching a decision by means of the exercise of a discretion are all features which are relevant when considering whether or not to order strike out under rule 18(7).  They are not, however, of any relevance when considering whether or not a rule 13(2) order has been complied with.  In such a case, the Tribunal has already addressed the question of whether or not the deadly sword of strike out should fall on the party against whom the order is sought and decided that unless a particular direction is complied with, it should.

36.	As the relevant authorities demonstrate, the only issue for the Tribunal at the stage this case had reached was that of whether or not the Claimant had complied with the order of 1 November.  It is not entirely clear whether in the end of the day the Tribunal answered that question.  At paragraph 48, the Employment Judge states “arguably more care could have been exercised with the somewhat brief response to the Order” but rather than then state whether or not his decision was that there was compliance, he concludes that strike out should be refused, a conclusion reached on the basis of his consideration of the irrelevant factors to which I have referred and which has very much the flavour of a rule 18(7) exercise.  He seems to avoid actually dealing with the sharp issue that was before him.

37.	I am satisfied that the response of 8 November was wholly inadequate and so lacking in specification as to constitute a failure to comply with the Tribunal’s order of 1 November.  There is no attempt to articulate the implied term relied on.  There is no attempt to specify the ‘habit’ or ‘circumstances’ which the Claimant relies on as demonstrating that that term was in fact agreed between parties.  There is no attempt to state how it was that whatever were the requirements of the implied term were satisfied by the Claimant on each of the dates for which he was claiming.  The response is also flawed by internal contradiction; if the Claimant had not had sight of his terms and conditions, how did he know that the term he was seeking to rely on was not included in them, as opposed to being an implied term?

38.	I would add that whilst there is no question of the letter of 15 November being able to be relied on as amounting to compliance with the order it is interesting to say the least that it appears to demonstrate an acceptance on behalf of the Claimant that the earlier response was not good enough.  It is also unsatisfactory that the Tribunal appear to have relied on an assertion about his case made by his solicitor which did not accord with that letter, as I have noted above.

Disposal
39.	In these circumstances, I will pronounce an order upholding this appeal.  I do not consider that there is any requirement for a remit.  The voluminous papers referred to can have no bearing on the issue of whether or not the response of 8 November complied with the order of 1 November.  I will, accordingly, add to my order a declaration that this claim was struck out on 9 November 2011.