Mark Whitcombe concludes his examination of the employment tribunal’s approach to striking out
The express power to issue an unless order was first introduced in the Employment Tribunal Rules of Procedure 2004. In several cases including Scottish Ambulance Service v Laing [2012] UKEAT 0038/12/1710 and and Richards v Manpower Services Ltd [2013] UKEAT 0014/13 the Employment Appeal Tribunal (EAT) has explained that unless orders are conditional judgments. They should not be confused with the various powers to strike out under r 18(7), and very different considerations arise.
A failure to comply with an unless order will lead to an automatic strike out under r 13(2). In the event of non-compliance, tribunals do not have discretion to do anything other than confirm dismissal of the claim. Partial compliance will not suffice to avoid the consequences of the unless order (Royal Bank of Scotland v Abraham [2009] UKEAT 0305/09/2608).
Since an unless order is a conditional judgment it is both susceptible to review under r 34 and also appealable to the EAT. Findings of fact may be necessary in order to resolve disputes about compliance
