Chowdhury: An Unless Order Can End a Claim, but Its Consequence Must Be Proportionate

An unless order requires you to do something by a deadline and states what will happen if you materially fail to comply. The consequence can be automatic dismissal of all or part of a Tribunal claim.

Do not treat it as an ordinary reminder. In Chowdhury v Secretary of State for Health and Social Care [2026] EAT 151, the Employment Appeal Tribunal confirmed the seriousness of the consequence, while holding that the Tribunal had failed to assess whether that consequence was proportionate when it made the order.

The judgment was decided on 2 October 2026. It is not permission to miss an unless order deadline.

What happened in the case?

The Tribunal required medical evidence. Its unless order stated that the claimant's remaining claims would be dismissed if there was material failure to comply. The Tribunal later issued a notice confirming dismissal.

The EAT accepted that the claimant had materially failed to comply. The appeal succeeded for a different reason. Before making the unless order, the Tribunal had not assessed whether dismissing all remaining claims would be a proportionate consequence of a future breach.

The unless order was set aside. The notice confirming dismissal consequently had no continuing effect. The respondent's cross appeal was dismissed, and the case was returned, where practicable, to the same Tribunal to resume the hearing.

This was not a decision that the claimant had complied or that medical evidence was unnecessary.

What does proportionate mean here?

A proportionate consequence is one justified by the purpose of the order and the seriousness and circumstances of the required compliance. The Tribunal must consider that issue when choosing the consequence written into an unless order.

The EAT identified relevant matters that can include:

• How much of the claim would be dismissed.
• What the obligation requires in practice.
• Why compliance is important to the case.
• The history of earlier failures to comply.
• Whether a less severe measure would achieve the legitimate purpose.

There were legitimate concerns about delay, earlier failures and the need for medical evidence in Chowdhury. Those concerns did not remove the need to assess the breadth of automatic dismissal.

The assessment depends on the order and circumstances. It is not a rule that dismissing an entire claim can never be proportionate.

What should you check when an order arrives?

Read the complete order and any reasons. Identify exactly what you must provide, the deadline and the part of the claim at risk. Keep a record of what you have done and evidence of any difficulty in complying.

If you need material from someone else, ask promptly and retain the request and response. Waiting for a third party does not automatically suspend the Tribunal deadline.

Where compliance is genuinely difficult, seek advice about a supported application before the deadline. Explain the obstacle and what you are asking the Tribunal to change. Making an application does not mean that an extension has been granted or that the original order has stopped applying.

If a dismissal notice has already arrived, the rules provide procedures that may be relevant, but deadlines and the available grounds need immediate checking. The judgment does not promise that every missed order can be reversed.

Keep the order and your response records

Bring the order, reasons, earlier directions and the documents showing your attempts to comply. The action required by the order should remain your immediate concern, even if you also question whether its consequence is justified.

Frances N.U