Tribunals: Unless Orders must be unambiguous to strike out whole case
A tribunal may only strike out a whole case if a claimant has not complied with an Unless Order if the Order unambiguously states this will be the consequence of non-compliance (Ijomah v Nottinghamshire Healthcare NHS Foundation Trust).
Tribunal makes Unless Order
Dr Ijomah was employed by Notts Healthcare as a Consultant Forensic Psychiatrist. He brought claims for whistleblowing detriment, unfair dismissal, automatic unfair dismissal (for having blown the whistle) and breach of contract.
At a preliminary hearing, the employment tribunal ordered him to provide a table setting out the detail of his allegations. Once received, Notts Healthcare argued he had not provided sufficiently clear or detailed information. The tribunal agreed and ordered Dr Ijomah to provide more details of his claims. It prepared a detailed set of questions for him to answer.
Before the next preliminary hearing, Notts Healthcare applied for an Unless Order. It argued Dr Ijomah had not provided the requested information. The Judge agreed and made an Unless Order. The Order stated that unless he complied with the earlier order his claims “or such of them as non-compliance relates” would be struck out.
Tribunal strikes out all claims
At the next preliminary hearing, the tribunal considered Dr Ijomah had not complied with the Unless Order and struck out all his claims.
After unsuccessfully applying for reconsideration and relief from sanctions (so the effects of the Unless Order would not stand), Dr Ijomah appealed to the Employment Appeal Tribunal (“EAT”).
Dr Ijomah’s appeal succeeds in part
The EAT partially upheld his appeal. The tribunal had wrongly interpreted the effects of the Order as applying to all his claims for any non-compliance.
It confirmed Unless Orders should not be used as a punitive measure. If an Order is ambiguous, it should be interpreted so far as possible to minimise the severe effect of striking out claims.
However, the EAT confirmed the strike out of Dr Ijomah’s breach of contract claims and certain disclosures and detriments on his other claims.
Unless Orders can be useful in litigation, especially if one party’s conduct poses challenges progressing the case, or if a claim is so vague it cannot be responded to. They can be used to strike out claims if there is material non-compliance with the order. They can also limit the scope of claims.
Any orders made should be carefully scrutinised to ensure the effect is clear to all parties. Any ambiguity will be construed against the party seeking to rely on it. As noted in this case, Unless Orders are not intended to be punitive.
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