Bauhaus Educational Services Limited v Elemide [2023] EAT 161

Appeal against a decision that an unless order made against the Claimant had been complied with. Appeal allowed.

The Claimant was a litigant in person who brought claims of unfair dismissal, age and race discrimination, wrongful dismissal and unlawful deduction from wages. Apart from the unfair dismissal claim which was rejected on grounds of lack of qualifying service, all the rest of the Claims were proceeding to a full hearing. An unless order was made against the Claimant in the following terms: “Unless by 27 October 2021 the Claimant serves a witness statement on the Respondent’s representative, the Claim will stand dismissed without further order.” The Claimant served his witness statement to the ET by the deadline but did not serve it on the Respondent's representative. The Respondent wrote to the ET, copying in the Claimant, saying that it was presumed that a hearing that was set for December would be vacated as a result of the Claimant not complying with the unless order. The Claimant sent the Respondent his witness statement within half an hour of that email. The ET then decided that the Claimant had complied with the unless order. The Respondent appealed.

The EAT allowed the appeal. The unless order was clear: it required one step which was either done or it was not, service of the witness statement on the Respondent’s representatives. As a matter of fact – and there was no dispute about this – the witness statement was not served in time on the Respondent’s representatives. It was perfectly clear that the only correct conclusion that could be reached was that the Claimant had not complied with the unless order because he failed to comply with the requirement to serve his witness statement on the Respondent’s representative.

Published: 08/03/2024 13:25

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