Mr B Henry, Counsel For v Mr D Charity, Consultant — 2023

This hearing concerned Mrs S Buck's application to set aside the unless order made on 18 November 2022 and the resulting strike out. The underlying claim, presented on 2 April 2020, included unfair dismissal, pregnancy and maternity discrimination, sex discrimination and holiday pay. The tribunal was not determining those claims on the merits at this hearing.

The tribunal found that the claimant was not aware that the final hearing had been listed to start on 22 November 2022. It accepted that her former representative, Mr E Buck, had received the notice of hearing but failed to tell her, and it accepted her evidence that he stopped communicating with her in late October 2022. The tribunal also accepted that the respondent had written to Mr Buck in October and November 2022 seeking to arrange witness statement exchange.

Applying the interests-of-justice approach under rule 38, and taking into account the seriousness of the default, the reason for it, the prejudice to the respondent and whether a fair hearing remained possible, the tribunal concluded that the claimant's default was substantial but not deliberate or persistent. It noted that she sought legal advice promptly, attempted to send her statement shortly before the deadline, and was only slightly late because of IT issues, although the statement remained password protected and therefore unreadable.

The tribunal therefore set aside the unless order and the consequent strike out. It made a fresh unless order requiring the claimant to provide the witness statement in readable form to the respondent and tribunal by 4pm on 12 May 2023, failing which the claim would again be struck out. The case was relisted for a five-day final hearing beginning on 12 June 2023.