The Claimant, who was acting in person and had various health issues that meant that she needed adjustments to enable her to engage with the ET process, had brought claims of unlawful discrimination arising out of the withdrawal of a job offer with the Respondent. An unless order was made requiring the Claimant to exchange her witness statement with the Respondent on 18 November 2019. On 7 November 2019, the Claimant applied for that order to be varied (allowing her more time to prepare her statement) but had not received a response from the ET by the required date of compliance. On 18 November 2019, the Claimant sent the Respondent a document that was said to be her statement, “submitted in the interim”, pending determination of her application for variation. The statement was essentially in the same terms as the particulars of claim attached to the Claimant’s ET1. The Respondent took the view that the Claimant had not thereby materially complied with the terms of the unless order. This issue was considered by the ET at the outset of the full merits hearing on 2 December 2019. Although the ET delayed the start of the hearing pursuant to the Claimant’s request for such an adjustment, she was not in attendance and the ET proceeded to make a decision in her absence, finding that she had not complied with the unless order. The Claimant appealed.

The EAT allowed the appeal. The Claimant had made clear that this was her statement provided - so as to comply with the requirements of the unless order - “in the interim”, while still waiting for a response to her application for variation; the Claimant had not suggested that, if that application was refused, she would not rely on the statement she had provided as standing as her evidence at the full merits hearing. This was not a case where the Claimant had been ordered to provide further particulars of her claim. The ET had, therefore, erred in construing the statement provided by the Claimant as an “interim” statement.