During a part-heard final hearing of her claims, the claimant became unwell and the hearing was postponed. The ET ordered her to provide medical evidence addressing her fitness to participate in the resumed hearing, any adjustments required and, if she remained unfit, when she was likely to become fit. The claimant failed to provide the evidence so the ET made an unless order providing that all her remaining claims would be dismissed and she was subsequently given notice of the dismissal. The claimant appealed both the making of the unless order and the notice confirming dismissal.

Marcus Pilgerstorfer KC, sitting as a Deputy High Court Judge allowed the appeal concerning the unless order and set it aside. Before making an unless order, an ET must consider whether dismissal was proportionate and consider such factors as and whether a less drastic measure would achieve the legitimate purpose of the order: While the ET had legitimate concerns about delay, previous non-compliance and the need for medical evidence, it did not assess whether automatic dismissal of the entire claim would be proportionate to a future breach. The claimant was in material non-compliance with the unless order. No independent error was established in the Tribunal’s determination to that effect. Nevertheless, once the underlying unless order was set aside, the notice confirming dismissal was declared to have no continuing effect. The case was remitted, if practicable, to the same Tribunal to resume the part-heard hearing.