Written by Employment Tribunal - mental health - procedural sanctions
Difficult litigation conduct can be deliberate. It can also reflect a person trying and failing to understand, organise or complete a procedural task. Before costs, an unless order or strike-out are imposed, the Tribunal must identify the effect of the conduct, examine the evidence about its cause and decide whether a proportionate response can still preserve fairness to both parties.
Snapshot
This article examines the point at which distressed or disorganised conduct becomes a sanctions question in the Employment Tribunal. It separates procedural effect from personal cause, distinguishes the legal routes for non-compliance, costs, unless orders, strike-out and non-attendance, and explains why diagnosis alone neither excuses default nor proves defiance.
Reader note: this article is general legal education, not clinical guidance. Mental ill health does not automatically excuse non-compliance, establish incapacity or prevent a sanction. The relevant assessment depends on the specific procedural power, the available evidence, the effect on the proceedings and fairness to both parties.
Effect and cause are separate
A litigant is directed to answer three defined procedural questions. Instead, the Tribunal receives several lengthy emails repeating the history of the dispute, introducing matters outside the direction and becoming increasingly emotional. The respondent cannot identify the case it is expected to answer. Tribunal staff must process material that does not comply with the order. The requested information remains missing.
The procedural effect may be obvious. The direction has not been followed, additional work has been created and the case has not moved forward. The cause is a different question. The litigant may have understood the instruction and chosen to disregard it. They may instead have been unable to identify relevance, organise the answer or regulate a distressed response.
Neither explanation should be assumed from tone alone. Emotion, repetition and unusual communication do not prove mental impairment. They do not prove deliberate obstruction either.
Core distinction. The Tribunal can identify objective disruption without making an immediate moral or clinical judgment about why it occurred.
This distinction matters because procedural descriptions carry consequences. Confused correspondence may be characterised as unreasonable conduct. A missed deadline may become persistent non-compliance. A missed hearing may be treated as evidence that the claim is not being pursued. If the pattern continues, the litigant may face participation restrictions, costs, an unless order or strike-out.
Procedural control is part of fairness
Orders, deadlines and communication limits are sometimes described as technical demands imposed on people who are already struggling. That description is incomplete.
The Employment Tribunal must turn a workplace dispute into issues that can be heard fairly. The respondent must know the case it has to answer. Witness evidence must be prepared while memories remain usable. Hearing time must be allocated and finite public resources protected. Delay and unnecessary expense can themselves produce injustice.
The Employment Tribunal Procedure Rules 2024 therefore combine flexibility with discipline. The overriding objective requires equal footing, proportionality, avoidance of unnecessary formality, avoidance of delay where compatible with proper consideration of the issues, and saving expense. The parties and their representatives must assist the Tribunal and cooperate.
The Rules also allow a Tribunal responding to non-compliance to waive or vary a requirement, strike out a claim or response, restrict participation or award costs. Procedural control is not an alternative to fairness. It is one of the methods by which fairness is secured.
The person must have a realistic opportunity to understand, communicate and present the case.
The opposing party must know the allegations, prepare evidence and avoid unnecessary expense or delay.
The case must remain capable of proportionate management and a fair determination.
Different powers, different questions
"Sanction" is often used as though it describes a single legal response. The current Rules contain several distinct routes. They overlap, but they do not ask the same question.
Rule 6 permits the Tribunal to take action it considers just after breach of a rule, practice direction or order. Available responses include variation, participation restrictions, strike-out and costs.
Rule 38 contains separate grounds, including unreasonable conduct of proceedings, non-compliance, failure actively to pursue and the position where a fair hearing is no longer possible.
Rule 39 allows an order to state that failure to complete a defined act by a deadline will dismiss all or part of the claim, response or reply without further order.
Rule 74 requires consideration of costs where conduct is vexatious, abusive, disruptive or otherwise unreasonable, or where another specified gateway is met. The decision to make an order remains discretionary.
Rule 47 permits dismissal or proceeding in absence only after the Tribunal considers the available information and makes any practicable enquiries into the reason for absence.
A mental-health explanation may affect each route differently. It may weaken an inference that conduct was deliberate. It may affect whether the conduct should be described as unreasonable or whether an order was realistically achievable. It may explain absence. It may not answer the separate question of whether the history has made a fair hearing impossible.
There is no universal requirement to impose an unless order before strike-out, and no general rule that every explained default must be excused. The Tribunal must apply the power actually engaged and give the party a fair opportunity to make representations where the Rules require it.
When impairment becomes procedurally relevant
A passing reference to stress does not require an open-ended medical investigation. Litigation is stressful for many people. Anger, persistence and entrenched grievance do not themselves demonstrate impairment.
The issue becomes materially relevant when credible information connects a condition or vulnerability with the behaviour under examination. The Presidential Guidance on Vulnerable Parties and Witnesses directs attention to whether participation or the quality of evidence is likely to be diminished. It recognises that vulnerability may arise from mental-health conditions, fear, distress or the litigation process itself, and may be temporary or situational.
The useful evidence is functional. It should identify the task, the barrier and the relevant period. A diagnosis of depression does not automatically explain failure to disclose documents. Anxiety does not establish that a short response could not be sent. ADHD does not, without more, prove that an order was impossible to understand or complete.
The questions should be specific. Could the person read the order but not organise the documents? Could they communicate in short exchanges but not prepare a structured statement? Did the condition affect sustained attention, memory, emotional regulation, decision-making or the ability to control repetitive correspondence?
Was the person affected when the default, correspondence or absence occurred?
Which litigation activity became difficult and what happened when it was attempted?
Did the functional effect cause or materially contribute to the conduct under examination?
Could clearer wording, staged compliance, time, communication limits or another arrangement reduce the barrier?
This approach avoids two errors. The first is treating any diagnosis as general incapacity. The second is treating any demonstrated activity as proof of full capacity. A person may send several distressed emails yet remain unable to organise a coherent witness statement. Selective activity remains relevant, but the comparison must be between genuinely similar tasks.
Why a fit note may answer another question
A litigant may provide a fit note and assume that the procedural question has been resolved. The document may establish that a clinician considered the person unfit for work. It may support an explanation for absence or reduced stamina. It does not automatically answer whether a particular litigation task remained possible.
Working a normal job, preparing disclosure, acknowledging an order, attending a full-day hearing and participating remotely place different demands on a person. A general statement of unfitness may therefore establish illness without explaining the effect on the task that matters.
More useful material may address concentration, reading, organisation, oral processing, travel, confrontation, stamina, the likely duration of the difficulty and whether participation is possible with defined measures. Existing treatment records or occupational-health material may be sufficient in some cases; a bespoke expert report is not an automatic requirement.
Diagnosis, symptoms, treatment, work fitness and the broad period affected.
The litigation task affected, functional limitation, likely duration and measures that may enable participation.
The controlled proposition is not that fit notes are inadequate. It is that their value depends on whether they address the question the Tribunal must decide.
When absence is not abandonment
A party who fails to attend creates an immediate problem. The respondent may be present with witnesses and representatives. Hearing time has been reserved. The Tribunal must decide whether to wait, postpone, proceed or dismiss.
Rule 47 does not make absence an automatic abandonment. Before dismissing a claim or proceeding without the party, the Tribunal must consider the available information after making any enquiries that may be practicable into the reason for absence.
What is practicable depends on the circumstances. It may involve checking same-day correspondence, asking whether staff have attempted contact, allowing a short stand-down, confirming whether a remote link failed or considering whether limited remote participation is possible. Those steps are not mandatory where the reason is already known or further enquiry would serve no useful purpose.
A person may miss a hearing without abandoning the case. Abandonment or failure actively to pursue is an inference from the history, not the automatic legal meaning of one absence.
Illness does not create a right to repeated relisting. Proceeding in absence may remain fair where the Tribunal has sufficient information, has made appropriate enquiries, has considered realistic alternatives and concludes that further delay would be disproportionate.
Clear orders and reliable warnings
Before conduct is described as persistent defiance, the quality of the instruction matters. A dense order spread across several documents may be difficult for an unrepresented person to follow. That does not make it invalid, but it may weaken a later inference that non-compliance was deliberate.
An effective direction identifies the act required, the deadline, the permitted format and the consequence of failure. Where medical evidence is requested, the order should identify the functional question the evidence needs to address. A broad request for "medical proof" may produce a diagnosis that does not assist with the procedural decision.
Where correspondence has become repetitive or unmanageable, the Tribunal may define the channel, frequency, length and questions to be answered. Clear communication limits protect the respondent and Tribunal while giving the litigant a usable structure.
State exactly what document, answer or step is required.
Explain page limits, headings, numbered questions or document categories.
Set a period that reflects the task, the case timetable and any established participation barrier.
Identify what may happen if the party does not comply.
These measures are evidential as well as supportive. If a party continues to disregard a clear and achievable direction after the problem and consequence have been explained, a later finding of persistent non-compliance becomes more reliable. Clarity does not weaken a sanction. It strengthens its legitimacy.
The role and limits of an unless order
An unless order can provide a final route to compliance where immediate strike-out would be disproportionate. It specifies the act, deadline and automatic consequence. Under rule 39, dismissal occurs without further order if the condition is not met, and the Tribunal must send written confirmation.
The party may apply within 14 days of that notice to have the order set aside on the basis that doing so is in the interests of justice. That application is a distinct stage from the earlier decision to impose the condition.
The usefulness of the mechanism depends on the act required. If the obligation is clear, achievable and capable of moving the case forward, an unless order can provide finality while preserving one last opportunity. If the underlying barrier means the person cannot realistically perform the act, repeating the demand with a more serious consequence may not solve the procedural problem.
Consider the history, clarity, proportionality and whether the required act is realistically achievable.
Identify what was done, what remained missing and whether the condition was satisfied.
Apply the interests-of-justice test to the explanation, promptness, prejudice and future conduct of the case.
An unless order is not automatically the fairer option and is not an obligatory stage before every strike-out. Lesser measures must be workable, not merely imaginable.
Costs and unreasonable conduct
Employment Tribunal costs are not awarded automatically to the successful party. Rule 74 instead identifies gateways that require or permit the Tribunal to consider a costs or preparation-time order.
The Tribunal must consider an order where it considers that a party or representative acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings, where a claim or response had no reasonable prospect of success, or where a late postponement application caused an adjournment. It may also make an order following breach of an order, rule or practice direction, or where a hearing has been postponed or adjourned.
Crossing a gateway does not make the order or its amount automatic. The paying party must have a reasonable opportunity to make representations. The Tribunal may consider ability to pay when deciding whether to make an order and its amount.
A long procedural history should not be treated as one undifferentiated block. The decision should identify the particular conduct, explain why it meets the gateway and consider the practical consequences. Some conduct may become unreasonable only after clarification, warnings or repeated opportunities. Some expense may have been caused by the conduct, while other costs would have been incurred anyway.
Credible evidence of impairment may affect how the conduct is understood and the discretionary response. It does not remove objective disruption or financial consequence. The safe proposition is that conduct, cause, consequence and ability to pay should not be collapsed into one judgment.
Which specific conduct satisfies rule 74?
What credible evidence bears on intention, control or ability to comply?
What expense or procedural burden was actually caused?
Should an order be made, for what amount and with what regard to ability to pay?
When a fair hearing is no longer realistic
Mental impairment may explain how proceedings reached crisis point. It does not guarantee that a fair hearing can still be recovered from them.
Rule 38 permits strike-out where the Tribunal considers that it is no longer possible to have a fair hearing. That ground is different from a moral finding that the party deliberately obstructed the case. The practical question is whether the proceedings remain fairly triable.
The respondent's position matters. Witness memories may have deteriorated, a witness may no longer be available, costs may have increased and hearing dates may have been lost. The issues may remain undefined despite repeated attempts at clarification. Adjustments, extensions, staged orders and warnings may already have failed to secure workable participation.
Proportionality and less drastic alternatives remain important. But fairness is not assessed only against an abstract possibility that a hearing might occur after unlimited further time. The Tribunal must consider the procedural history, available prognosis, likelihood of future compliance, prejudice already caused and whether a narrower consequence can still preserve a fair determination.
A person may be unable rather than unwilling to conduct the proceedings. The consequence may still be that the case can no longer be tried fairly. Fault and procedural viability are related, but they are not identical.
A disciplined decision sequence
The answer is not to medicalise every difficult litigant or excuse unsupported non-compliance. It is to diagnose the procedural problem accurately before selecting the response.
What order was breached, what information remains missing and what prejudice or expense followed?
Was the act clear, practicable, time-limited and accompanied by an intelligible warning?
What credible evidence connects the condition or vulnerability to the specific task and relevant period?
Would clarification, staging, a communication protocol, time, remote participation or an unless order preserve progress?
Distinguish costs, non-compliance, non-attendance, failure actively to pursue and fair-hearing impossibility.
Explain the effect on participation, the respondent, witnesses, expense, timetable and the Tribunal's ability to determine the case.
This sequence does not guarantee accommodation or prevent serious sanctions. It improves the reliability of the decision, including a decision that the proceedings must end.
Source anchors
These official sources support the current procedural framework. They do not determine whether a particular litigant's conduct was caused by impairment or whether a sanction is justified in an individual case.
The current rules on the overriding objective, non-compliance, strike-out, unless orders, non-attendance and costs.
The Judiciary's current overview of the 2024 Rules and the overriding objective.
The current index confirming that extant Presidential Guidance continues under the 2024 Rules.
Guidance on early identification, participation, evidence quality, ground rules and practical measures.
The closing point
Mental ill health does not create procedural immunity. Orders still matter, respondents are entitled to usable issues and evidence, and a case may reach the point where costs, proceeding in absence or strike-out are justified.
But procedural language should not turn impairment into defiance without first establishing that the description fits. The effect of the conduct remains real. So does the importance of understanding its cause.
A fair Employment Tribunal process should be capable of holding both propositions at once.
Employment Tribunal conduct decision point
Get a free written assessment of the tribunal route
Legal Lens can structure a preliminary written review of a conduct or sanctions issue: the order, alleged default, functional evidence, warnings, prejudice, available alternatives and procedural route.
Separate the objective effect, the asserted cause, the supporting material and the disputed inferences.
Distinguish clarification, extension, participation measures, costs, unless order, non-attendance and strike-out.
Orders, defaults, explanations, alternatives, prejudice and sanction routes.
Task-specific records, correspondence, medical material and missing documents.
Independent Legal Lens consultancy. Legal Lens is not a regulated solicitors' firm or a clinical service. A preliminary assessment is not a substitute for regulated legal advice or medical care where either is needed.