Tribunal erred in dismissing disability discrimination claim over 'Unless Order' compliance
The EAT overturned a decision dismissing a disability discrimination claim, finding an Employment Judge misapplied an 'Unless Order' regarding the claimant's participation in a remote hearing.
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Disability Discrimination Claim Reinstated After Appeal Tribunal Finds Error
The Employment Appeal Tribunal (EAT) has overturned a decision by a Watford Employment Tribunal to dismiss a disability discrimination claim, ruling that the original judge erred in concluding that the claimant, Mr. R Peposhi, had failed to comply with an 'Unless Order'. The case, Peposhi v (1) Go Crisis Ltd (2) Woven Solutions Ltd, highlights the importance of precise drafting and objective assessment when applying such orders.
Background
Mr. Peposhi brought claims of disability discrimination against Go Crisis Limited and Woven Solutions Ltd, citing a hearing impairment (complete hearing loss in his left ear). A final hearing was conducted remotely. During the hearing, the claimant faced technical issues which prevented him from rejoining the hearing and the Tribunal made an Unless Order, the terms of which required the Claimant to take a number of steps within a particular time frame. The Judge dismissed the claim after time for compliance with the Order had passed.
The 'Unless Order' Dispute
The 'Unless Order' required Mr. Peposhi to provide a written explanation, along with supporting evidence, explaining why he was unable to rejoin the hearing via video conference or telephone. The Employment Judge, Reindorf KC, determined that the material submitted by Mr. Peposhi did not adequately address the reasons for his non-attendance, leading to the dismissal of his claim.
Appeal Tribunal Ruling
Her Honour Judge Tucker, presiding over the EAT, found that the Employment Judge had applied an incorrect legal test. Instead of focusing on whether Mr. Peposhi had undertaken the required steps, the Judge considered whether the explanation provided by the Claimant for not rejoining a remote hearing was good enough.
Judge Tucker emphasised that Unless Orders are useful management tools which the purpose is to ensure compliance with the Tribunal’s directions. Therefore, it is important that the person who is required to comply must understand clearly and unambiguously what it is that they are required to do. Ambiguity should be resolved in favour of the complying party, not in favour of the interpretation intended or meant to be conveyed by the author of the Order.
The EAT also noted the original panel had made the decision to make the Unless Order, with the final decision regarding compliance being made by the Judge alone. This raised questions regarding the correct procedure.
Implications for Employers and Employees
This case serves as a reminder to employers and Employment Tribunals regarding the careful application of 'Unless Orders'. The drafting of the order must be precise and unambiguous. The focus should be on whether the party has objectively complied with the terms, rather than subjectively assessing the quality of their explanation.
The EAT acknowledged sympathy with the original tribunal, but noted, instead, the Tribunal chose to make an Unless Order but then fell into error by evaluating the compliance with that Order in terms of the adequacy of the explanation given, rather than addressing the issue of whether there had been compliance with the terms of the Unless Order. Issues relating to conduct of proceedings are not easily dealt with through an Unless Order.
The EAT noted that issues relating to equality of arms extend to many aspects of a litigant’s ability to participate in hearings including, in my judgment, to their access to technology so as to be able to participate in a hearing on an equal footing with others.
Read the entire judgement here: Mr R Peposhi v (1) Go Crisis Ltd (2) Woven Solutions Ltd [2025] EAT 27
