The Employment Appeal Tribunal has allowed an appeal against an unless order that automatically dismissed the remaining claims of a claimant whose employment proceedings had been adjourned part-heard following her ill health.
What did the EAT decide?
In Z Chowdhury v The Secretary of State for Health and Social Care [2026] EAT 151, dated 2 October 2026, Marcus Pilgerstorfer KC, Deputy Judge of the High Court, allowed the appeal against an unless order made by the Employment Tribunal on 16 October 2024.
The Employment Tribunal had ordered that all of the claimant’s remaining claims would stand dismissed if she materially failed to provide specified medical evidence concerning her fitness to participate in the resumed hearing, any adjustments required and, if she remained unfit, when she was likely to become fit.
The EAT held that the Tribunal had legitimate concerns about delay, previous non-compliance and the need for medical evidence. However, it had not considered whether automatic dismissal of the entire claim would be a proportionate consequence of a future breach.
The unless order was therefore set aside. The notice dated 5 December 2024 confirming dismissal of the claims was also set aside as a consequence.
What was the background?
The claimant brought claims including discrimination, unfair and wrongful dismissal and claims relating to other payments. The proceedings were listed for a four-day hearing before an Employment Tribunal at London Central.
The final hearing began on 17 June 2024. The claimant gave evidence during the first two days. On 19 June 2024 she did not attend after being taken to hospital, and the hearing was adjourned.
The Tribunal subsequently required medical evidence addressing the claimant’s fitness to participate in the resumed hearing, any adjustments that might be required and, if she remained unfit, when she was likely to become fit.
- ET1 presented bringing claims including discrimination, unfair and wrongful dismissal and other payment claims.
- The four-day final hearing began before the Employment Tribunal at London Central.
- The claimant continued giving evidence on the second day of the hearing.
- The Tribunal made an order requiring specified medical evidence for the relisting of the part-heard hearing.
- The Tribunal made the unless order providing for dismissal upon material non-compliance.
- The Tribunal gave notice confirming dismissal.
- The EAT allowed the appeal against the unless order and set it aside.
Why was the unless order set aside?
The EAT explained that an unless order is a conditional judgment. It gives a party an opportunity to comply with a case-management requirement while stipulating that material non-compliance will automatically result in dismissal of all or part of a claim, response or reply.
Because the sanction is serious, the Tribunal must consider all relevant circumstances and satisfy itself that the stipulated dismissal would be an appropriate and proportionate consequence of material non-compliance.
The proportionality assessment ordinarily requires consideration of the nature of the obligation imposed and the extent of the dismissal that would follow. Where relevant, the Tribunal should also consider whether the legitimate purpose of the order could adequately be achieved by a less drastic measure.
In this case, the EAT concluded that the Tribunal had not carried out that assessment when it made the unless order. It had considered the concerns giving rise to the need for medical evidence, but it had not considered whether dismissal of all the claimant’s claims would be proportionate to a future breach.
What did the EAT say about non-compliance?
The EAT did not find an independent error in the Tribunal’s conclusion that the claimant had materially failed to comply with the unless order.
The order required medical evidence addressing three specific matters. The material supplied by the claimant did not provide the required evidence. The EAT therefore concluded that the Tribunal was entitled to find material non-compliance.
However, that conclusion did not save the unless order. Once the underlying order was set aside because it had not been made following the required proportionality assessment, the notice confirming dismissal could no longer remain effective.
The EAT therefore allowed the appeal against the making of the unless order and set it aside. The appeal concerning the notice confirming dismissal was consequentially resolved by setting that notice aside as well.
What happens next?
The claimant’s claims no longer stand dismissed pursuant to the unless order and the case must return to the Employment Tribunal.
The EAT concluded that, if practicable, the case should be returned to the same Tribunal that heard the first two days of the final hearing in 2024. The Tribunal that heard those days was considered best placed to resume the part-heard hearing.
The EAT also considered that returning the case to the same Tribunal offered the best prospect of avoiding the loss of the first two hearing days and thereby saving costs and Tribunal resources.
The remitted Tribunal will make the necessary case-management decisions concerning the relisting, including the number of days required and whether further orders concerning medical evidence are appropriate.
The EAT ordered the parties to provide the London Central Employment Tribunal with dates to avoid during the remainder of 2026 and in 2027 by 4pm on 16 October 2026. If the claimant wishes the Tribunal to consider medical evidence when deciding when to relist the case, that evidence must also be sent by 4pm on 16 October 2026.
Frequently asked questions
What is an unless order?
An unless order is a conditional order under which a specified consequence, such as dismissal of a claim, automatically follows if the required condition is not complied with by the specified date.
Why did the EAT set aside the unless order?
The EAT held that the Employment Tribunal had not considered whether dismissal of all the claimant’s claims would be a proportionate consequence of material non-compliance when the unless order was made.
Was the claimant found to have breached the unless order?
Yes. The EAT concluded that the claimant was in material non-compliance with the unless order. However, because the underlying unless order was itself set aside, the notice confirming dismissal could not remain effective.
What happened to the dismissal notice?
The notice dated 5 December 2024 confirming dismissal was set aside as a consequence of the unless order being set aside.
Where will the case go next?
The case will return to the Employment Tribunal and, if practicable, will be resumed before the same Tribunal that heard the first two days of the final hearing in 2024.