The Claimant brought a claim of unfair dismissal to the ET in December 2019. An unless order was imposed on the Claimant in November 2021 after a number of orders had been made by the tribunal for documents and witness statements to be provided but which had not been complied with by the Claimant. One important point was that the Claimant's solicitors had asked the Respondent's solicitors to tell them the terms of the unless order but were not provided with them until after the date the unless order should have been complied with. The Claimant was ready to provide his witness statements within the time set out in the unless order but the reason for the statements not being provided at that time was the mistaken belief as to mutual exchange. Rather than request that the statements be provided unilaterally and in accordance with the terms of the unless order, the Respondent’s solicitors appeared, on the face of it, to have elected not to respond at all to the Claimant’s solicitors until after the claim was struck out under the terms of that order. The Claimant appealed the decision to decline to grant relief from sanctions.

The EAT allowed the appeal on the basis that the EJ failed to take into account a number of important factors that were clearly relevant to the interests of justice test applicable to applications under Rule 38(3) ET Rules.