Although tribunals have the power to strike out a claim, the Employment Appeal Tribunal (EAT) held in Leeks v Brighton & Sussex University Hospitals NHS Trust that the tribunal was wrong to hold that the claim should be struck out on the basis the claimant had not complied with an unless order as she had, in fact, materially complied with it.


Basic facts

In August 2017, Ms Leeks applied for a job as a housekeeping assistant with the trust. After initially offering the post to her, the trust withdrew the offer at the end of November 2017 when it found out that she had been dismissed for misconduct on three previous occasions. Ms Leeks lodged a number of tribunal claims in April 2018, including one of discrimination on the grounds of disability.


Tribunal decision

At a preliminary hearing on 25 July 2018, the tribunal directed the parties to exchange witness statements by 17 December. Ms Leeks, who was acting on her own behalf, failed to do so and missed a second deadline of 28 June 2019.

After another preliminary hearing on 24 October 2019, the judge held that her claim would be dismissed “without further order" unless she sent her witness statement to the trust by 18 November. On 7 November, she applied for that order to be varied due to various health issues she was experiencing, but as she had not received a reply by the 18th, she sent the trust a statement “in the interim”, pending determination of her application for variation (which was subsequently refused).

On the day before the full merits hearing on 2 December, Ms Leeks asked for the start to be delayed, again due to health issues. After waiting for an hour, the tribunal went ahead with the hearing. It decided that as the document she had sent to the trust on the 18th was essentially the same as the wording on her claim form, she had not complied with the unless order.

On 30 January 2020, the tribunal wrote to the parties to confirm that the claim had been struck out, although the letter did not state the name of the judge or specify that the decision had been taken at the hearing on 2 December. Ms Leeks applied for the claims to be reinstated, but her request was refused. She then appealed on the basis that she had complied with the unless order when she submitted her statement on 18 November and that, by striking it out, the tribunal had denied her a fair hearing.


EAT decision

The EAT held that the tribunal had not made a mistake when it considered the issue of whether she had complied with the unless order in her absence and she had not, therefore, been denied a fair hearing.

However, it then went on to hold that the tribunal had been wrong to construe the document she submitted on the 18th as an interim statement. As Ms Leeks had made clear, she had submitted the document in order to comply with the requirements of the unless order “in the interim”, while waiting for a response to her application for variation. She had not indicated, at any point, that she would not rely on this statement as her evidence at the full merits hearing.

By dismissing her claim, the tribunal had not properly addressed the question of whether she had materially complied with the order. As she had not been ordered to provide further particulars of her claim but rather to submit a statement, she had complied with the terms of the unless order by submitting the document on 18 November 2019.



Whilst the employment tribunal has the power to strike out claims for failure to comply with case management orders, the EAT in this case confirmed that it should ensure it had considered all elements before taking such a draconian step.