Material Compliance with Unless Orders in Employment Tribunals: Uwhubetine v NHS Commission Board

Introduction

The case Uwhubetine & Anor v. NHS Commission Board England & Ors [2019] UKEAT 0264_18_2304, adjudicated by the United Kingdom Employment Appeal Tribunal (EAT) on April 23, 2019, serves as a significant precedent in Employment Tribunal (ET) practice, specifically concerning the enforcement and consequences of Unless Orders. The appellants, Dr. Njoku and Dr. Uwhubetine, GPs operating in partnership in Doncaster, initiated claims against four respondents: the NHS Commissioning Board for England (First Respondent), the NHS Doncaster Clinical Commissioning Group (Second Respondent), and two individuals, Dr. D Black and Dr. D Brown (Third and Fourth Respondents). The core issues revolved around allegations of race discrimination, harassment, victimization, and detriment due to protected disclosures.

This commentary delves into the procedural journey of the case, the Tribunal's application of Unless Orders, the EAT's analysis, and the broader implications for ET practices.

Summary of the Judgment

The appellants filed a claim on November 3, 2017, alleging discriminatory and victimizing treatment by the respondents. The Employment Tribunal conducted a preliminary hearing on June 12, 2018, where it evaluated the claimants' compliance with an Earlier Unless Order issued on March 21, 2018. The Tribunal found that the claimants had materially failed to comply with the order, specifically in serving a Scott Schedule—a document delineating each alleged act of discrimination or harassment with corresponding details. Consequently, the claimants' cases were struck out automatically without further notice.

The appellants contested this decision, raising multiple grounds of appeal, including alleged legal errors in determining material non-compliance and procedural fairness. The EAT reviewed these grounds and ultimately dismissed the appeals, upholding the Tribunal's judgment.

Analysis

Precedents Cited

The EAT referenced several key cases to substantiate its reasoning:

Royal Bank of Scotland v Abraham [2009] UKEAT 0305_09_2608
Marcan Shipping (London) Limited v Kefalas [2007] EWCA Civ 463
Johnson v Oldham Metropolitan Borough Council [2013] UKEAT 0095_13_1704
Wentworth-Wood and Others v Maritime Transport Limited [2016] UKEAT 0316_15_0310

These cases collectively emphasize the importance of clear compliance with Tribunal orders and the limited discretion Tribunals have in altering such orders. They also highlight the necessity for claimants to provide detailed and specific information when directed by Tribunal orders to ensure fairness and enable respondents to effectively defend their positions.

Legal Reasoning

Central to the EAT's decision was the interpretation and enforcement of Unless Orders under Rule 38 of the Employment Tribunals Rules of Procedure 2013. The Tribunal is mandated to ensure that such orders are complied with materially, meaning that the claimants must provide sufficient particulars to allow respondents to understand and respond to each allegation effectively.

The EAT underscored that Unless Orders are stringent directives; non-compliance leads to automatic dismissal of claims without the need for additional orders or notices, aligning with the principles established in the cited precedents. The Tribunal judge's role is not to re-evaluate the merits of the claims but to assess compliance with procedural requirements.

In this case, the Scott Schedule submitted by the claimants was found deficient in several respects:

Failure to identify specific individuals responsible for alleged misconduct within the First and Second Respondents.
Inadequate specification of dates for incidents, often providing broad timeframes rather than precise dates.
Lack of detailed descriptions of the alleged acts of discrimination, harassment, or victimization.

These deficiencies impeded the respondents' ability to comprehend the case against them fully, thereby constituting material non-compliance with the Tribunal's order.

Impact

This Judgment reinforces the imperative for claimants in Employment Tribunals to adhere strictly to Procedural Orders, especially Unless Orders, which demand detailed compliance within specified timelines. It underscores that failure to provide clear, specific, and comprehensive information can result in automatic dismissal of claims, irrespective of their substantive merits.

For legal practitioners, this case serves as a stark reminder of the necessity for meticulous preparation and compliance with Tribunal directives. It also delineates the boundaries of Tribunal discretion in managing case procedures, emphasizing that procedural failures can override substantive claims.

Future cases involving complex multi-party claims will likely reference this Judgment to argue the extent and nature of compliance required with procedural orders, particularly in the context of providing detailed allegations and identifying responsible parties accurately.

Complex Concepts Simplified

Unless Orders

An Unless Order is a directive issued by a Tribunal requiring a party to perform a specific action by a set deadline. Failure to comply materially with such an order results in the automatic dismissal of the relevant claim or response without further notice.

Scott Schedule

A Scott Schedule is a detailed document used in Employment Tribunals where claimants outline each alleged act of discrimination or misconduct, specifying dates, responsible parties, and relevant paragraphs of their claims. It aids respondents in addressing each allegation systematically.

Material Compliance

Material Compliance refers to fulfilling the substantive requirements of an order in a way that effectively meets its purpose. In the context of Unless Orders, it means providing detailed and specific information that allows respondents to understand and respond to each allegation adequately.

Rule 38 of the Employment Tribunals Rules of Procedure 2013

Rule 38 governs Unless Orders, specifying that non-compliance leads to automatic dismissal of claims or responses. It outlines the processes for issuing such orders, the consequences of non-compliance, and the mechanisms for seeking relief from sanctions.

Conclusion

The Uwhubetine & Anor v. NHS Commission Board England & Ors Judgment underscores the critical importance of strict adherence to Tribunal procedural orders, particularly Unless Orders. It highlights that procedural compliance is paramount and that Tribunals possess limited discretion in modifying or leniently interpreting such orders. For claimants, this case serves as a cautionary tale to ensure that all procedural directives are met with precision and thoroughness to preserve the viability of their claims. For respondents and legal practitioners, it reaffirms the necessity of detailed scrutiny of claimants' compliance with procedural requirements to safeguard against unfounded or poorly substantiated claims.

Ultimately, this Judgment contributes to the body of law governing Employment Tribunals by clarifying the expectations and consequences surrounding procedural compliance, thereby promoting fairness and efficiency within the tribunal process.