The Respondent was ordered to disclose certain documents to allow an analysis of the work carried out on the machines to which the claimants (and other Polish workers) were allocated in comparison to the machines they claimed were operated by Indian employees. The Respondent did disclose documents but did not fully comply with the unless order because, according to them, the information was not available in the form that had been requested. The attempt at compliance was determined not to have constituted material compliance, with the consequence that the response was struck out. The Respondent applied, pursuant to Rule 38(2) ET Rules, for "relief from sanction" which was refused. The Respondent appealed.

The EAT allowed the appeal. In rejecting the application, the EJ erred in law in failing to take account of the attempt that the Respondent made to comply with the unless order, or to analyse the extent of the failure in material compliance, in weighing up the interests of justice.