The ET served an unless order on the Claimant which stated he must comply by 11 December 2020. He did not comply and the strike out of his claim was confirmed by the ET in January 2021. The Claimant appealed on 7 grounds but the central issues were whether the ET should have considered whether there was material compliance with the unless order on the basis that any failure to comply had not impacted on the ability of the ET to hold a fair trial of the claim; and whether the Claimant ought to have been given an opportunity to make representations.

The EAT dismissed the appeal. When deciding whether to issue a notice of confirmation pursuant to Rule 38(1) the issue for the ET is limited to whether the unless order has been “complied with”. A party may argue that they have complied in substance, but Rule 38(1) does not provide scope to argue that they have not complied but that this is not material. In the present case there had been total non-compliance with the unless order and there was no basis on which the ET could have done anything other than issue the notice. The Claimant had made written representations which were taken into account and he had been treated fairly.