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17 October 2012
Employment Appeal Tribunal (EAT)
If a party does not comply with an ‘unless' order (ie an order that unless the party complies, the claim will be struck out), the claim must be struck out. Tribunals have no discretion.
L complained to a tribunal about the employer's withdrawal of an allowance previously paid to him. He was ordered to provide more details, including what he said he was owed, for what dates and the basis on which he claimed the allowances were due. He provided some of the information but still did not explain the basis of the claim. The employers applied for and were granted an ‘unless' order to provide the rest of the information. L's solicitors responded saying the claim was based on implied terms of employment - but without details of the terms they claimed were implied or why. More details were provided after the deadline for compliance with the order. The tribunal ordered that there should be a ‘pre-hearing review' to decide whether the claim should be struck out. The employer objected that the claim should already have been struck out automatically. The tribunal held it had a discretion whether or not to strike out the claim, and decided not to strike it out. The EAT overturned the tribunal's decision and held that the claim was automatically struck out when L failed to comply with the order. Partial compliance was not good enough.
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