Polyclear v Wezowicz [2022] ICR 175

When determining if relief should be granted from an unless order per rule 38(2) of the Employment Tribunals Rules of Procedure 2013, actions that don't achieve material compliance should still be considered.

A party's inability to materially comply with an unless order can be a significant factor in deciding whether relief from sanctions should be granted.

In circumstances where there might be impossibility of strict compliance with an unless order, it may form a basis to challenge the decision to impose it, though it doesn't automatically render non-compliance as material compliance.

Facts and Application of the law

The claimants, identifying as Polish, were employed at a factory run by the respondent. They alleged unfair dismissal and race discrimination, asserting that Polish workers were assigned more demanding tasks than their Indian counterparts. To support this, they sought specific job sheet disclosures for comparative analysis. While the employer argued that strict compliance with this request was not feasible, they still attempted to share relevant documents via cloud sharing. Due to email delivery issues, the tribunal made another disclosure order with a condition to strike out the employer’s response for non-compliance. The employer made a second disclosure attempt, which, despite not being in strict compliance, was a significant effort towards the order's requirements.

When the claimants deemed the effort as non-compliant, the tribunal struck out the employer's response. On appeal, the EAT highlighted that any action towards compliance, even if it falls short, should be considered when assessing if relief from an unless order should be granted. The tribunal's failure to account for the employer's second disclosure attempt was deemed an error of law, leading to the appeal's approval and case remittance.

If you are looking to appeal a decision from the Employment Tribunal to the Employment Appeal Tribunal concerning compliance with disclosure orders, this case provides insights into when relief from an unless order may be granted and the significance of any compliance effort.