Practice and Procedure; Unless Order – The Tribunal made a Rule 38 Unless Order which bore to be in accordance with the power conferred by Rule 31 of the Employment Tribunal Rules. The Order set a deadline for the Appellant to produce certain documents ‘within your possession’ as described in a schedule to the Order. The documents described in the schedule were medical records and reports. The schedule also ordered further and better particulars of the Appellant’s claim of disability discrimination. On the day before the expiry of the deadline for compliance with the Order, solicitors instructed by the Appellant wrote to the Tribunal providing the further particulars which had been ordered, and advising that the Appellant did not have any of the documents referred to in the schedule to the order, but had requested them from her GP and other medical practitioners. The Employment Judge concluded that there had been non-compliance with the Order and issued a notice of dismissal the Appellant’s claims under Rule 38(1).
Held: The Employment Judge had erred. The Unless Order, insofar as it related to the production of documents, was expressly limited in its scope to documents which were within the possession of the Appellant at the material time. It did not extend to documents in the possession and control of her GP, or to medical Reports which had been instructed by her but not yet completed. A purposive approach to the meaning of the Order such as to imply an obligation on the Appellant to ingather documents from third parties was not appropriate. There was no material before the Employment Judge from which he could properly have concluded that there had been a failure to comply with the Order.
Appeal allowed and case remitted to the Employment Tribunal for further procedure.
Citations:
[2022] EAT 13
Links:
Jurisdiction:
England and Wales
Employment
Updated: 01 July 2022; Ref: scu.678566