One of the types of order that the tribunal can make is an ‘unless order’. This is an order in the form: “Unless you do that, this will happen”.

For example, the tribunal may order “Unless the Claimant discloses all the documents on which he intends to rely by the 1st May, his claim will be struck out”.

Unless orders are usually made when a party has failed to comply with previous orders. They are a way of the tribunal saying “This is your last chance. Sort this out, or else.”

Your aim should be not to get into a situation where the tribunal makes this type of order. But if they do, it is vital that you comply with it – to the letter and on time.

This is even more important following the case of Chukwudebelu v Chubb Security. The Court of Appeal has ruled that an unless order takes effect automatically if not complied with.

In other words, if, in the example above, the claimant fails to disclose his documents by the 1st May, his claim will be considered struck out at that point. The tribunal will not have to make a second order to do so. This means there will be no opportunity for explanation, apologies or excuses. It will have happened.

If the worse happens and it really is impossible to comply with the unless order, it is vital that you make an application to vary it before it takes effect. This should be done in sufficient time that the tribunal can make a decision to change the order before the deadline for compliance.

Chukwudebelu v Chubb Security

There are two sources of law in the employment tribunals. One is legislation: the law passed by Parliament. The other is case-law, some of which consists in the courts’ interpretations and explanations of legislation, and some of which is what is called ‘common law’ – law that doesn’t come from legislation at all, but has been developed over the years by the courts.

These are broad headings. They do not take into account the differences between Acts of Parliament and Regulations. Or deal with the significant role European legislation and case-law has on tribunals.

The point is that there is a lot of useful information out there that is not the law. What you read in a text book; a handbook; a magazine; a leaflet; or the internet (including this blog) is not the law. It is a description of the law. The same is true even of a book written by a judge, or a leaflet produced by a government department, or ACAS, or the Employment Tribunal Service.

There are two important consequences of this. Firstly, descriptions can be wrong. Employment law moves relatively quickly. A book written a few years ago is likely to include dozens of points that were quite right at the time but where things have changed. And people – even lawyers – do make mistakes.

Even if your sources are up to date and accurate they will be a summary of the law. Often this is all you need, but on important points it can be useful to go directly to the source. Reading a brief review of an area in a book will never give you the sort of detailed knowledge that an afternoon sweating over the legislation and half-a-dozen cases will.

The other point is that the tribunal is only bound by the law itself. If you want to convince them of something, you will normally need to do it by referring to legislation and case-law, rather than a book.

There is a difference here between the tribunals’ expectations of lawyers and lay people. A lawyer who advances a legal proposition without being able to back it up by reference to legislation or case-law is likely to get a flea in her ear from the tribunal – and deserve it. A litigant in person who says ‘I think it’s like this; I found it in this book’ can expect the tribunal to meet her halfway.

None of this is to say that secondary sources of information are not valuable. They are extremely useful, even vital, sources of information, analysis and advice. But they are a map of the legal landscape, not the landscape itself.

In Aptuit v Kennedy the EAT has provided guidance on two important issues relating to the Statutory Dismissal and Disciplinary Procedure. Firstly, the process by which the employee must be informed of her right to appeal, and, secondly, how the uplift to the award should be calculated.

Right to appeal

The EAT concluded that there was no need for an employee to be informed of her right to appeal in writing, para. 35 & 44. A verbal statement that an appeal was available was sufficient. Further, neither a oral or written statement needed to be in any particular form. All that was necessary was that the right to appeal was communicated in some way.

Lady Justice Smith did not deal with precisely when the communication of the right to appeal must be made. It seems arguable that the requirement could be satisfied if the right to appeal is laid out in a generally available disciplinary procedure; particularly if the employee’s attention is drawn to the procedure at some stage of the process. This argument remains unresolved.

Uplift

Where the employer has failed to follow the disciplinary procedure the claimant’s award will be increased by 10%, save in exceptional circumstances. The tribunal has a discretion to increase this uplift up to 50%. There has been little guidance from the EAT as to how this is decision is to be made. Aptuit sheds some light on it, but stops well short of providing definitive guidance.

What Aptuit does make clear is that the only relevant factors when making this decision are those relating to the failure to follow the procedure, para.47. The general merits or circumstances of the case are not relevant. Claimants arguing for an uplift, therefore, should focus their submissions on the extent of the failure and the reasons for the failure (preferably showing that there was no good reason for it).

Aptuit v Kennedy