Claimant v West Midlands Fire & Rescue Authority — 2021

This was a preliminary hearing on 29 September 2021 before Employment Judge Dimbylow to determine whether the respondent had complied with an unless order made by Employment Judge Harding on 21 July 2021. The order required the respondent to provide an explanation for earlier litigation issues and to serve its witness statements by 1 September 2021. The claimant argued that the response should be struck out for breach of the order; the respondent said both parts had been complied with.

The tribunal held that there had been compliance with the first part of the order. The judge accepted that the explanation provided was thin, but found it was sufficient for the purposes of the tribunal's rules and did not amount to a material breach. On the second part, the judge found that the respondent's solicitor sent the witness statements at 23:59:59 on 1 September 2021, first to the claimant and then shortly afterwards to the claimant's solicitor, and concluded that this was compliance with the order. Where there was ambiguity about timing, the judge said it should be resolved in favour of the party required to comply.

Because there was no material breach of either part of the order, the tribunal declined to strike out the response. The judge also said that if relief from sanctions had been in issue, the balance of prejudice would likely have favoured the respondent, because the claimant knew the respondent's witness evidence and still had not prepared or served his own witness statement.

The claimant also applied for a stay of proceedings pending an appeal to the EAT. That application was refused as not serving the overriding objective, particularly given the delay in relisting hearings and the claimant's position that he had chosen not to prepare or serve his witness statement pending the outcome of the strike-out issue. The parties later agreed to amend the claimant's witness statement deadline to 4pm on Friday 1 October 2021 by consent.