Tattersall v Mersey & West Lancashire NHS Trust

Tattersall v Mersey & West Lancashire Teaching Hospitals NHS Trust

Facts

On the 2nd of November in the year 2020, the tribunal issued an Unless Order. On the 15th of January, 2021, the tribunal issued a notification stating that it had not been complied with and that the claims made by the Claimant had been rejected. The Applicant filed an appeal. In spite of the fact that he had not complied with the Unless Order, he contended that it was still feasible to have a fair hearing regarding the claim.

Held

Despite the fact that the EAT did not agree with the claimant's viewpoint, it affirmed that the notice of strike-out issued by the tribunal should be upheld. Rule 38(1) of the Employment Tribunals Rules of Procedure contains the rule that is applicable to the situation of unless orders. The question that the tribunal must resolve in order to determine whether or not to issue a notice of confirmation of non-compliance and strike-out in accordance with Rule 38(1) is confined to determining whether or not the relevant order has been "complied with." 

Rule 38(1) does not provide for the possibility of a party arguing that they have not complied with the requirements but that this is not a significant issue. In this particular instance, there had been complete non-compliance with the unless order, and there was no basis on which the tribunal could have done anything other than issue the notice.

Comment

In the case of Tattersall v Mersey & West Lancashire Teaching Hospitals NHS Trust, the Employment Appeal Tribunal ruled that a tribunal retains the right to dismiss a claim if the claimant disregards a 'unless' order, provided that a fair trial is still feasible.