In person For the v Respondent — 2023

At the preliminary hearing on 12 December 2023, Employment Judge Brown considered the respondent's application to strike out the claim under rule 37(1)(c) of the Employment Tribunal Rules of Procedure 2013. The judgment records that the claim form had originally included race discrimination, harassment, victimisation, unpaid wages, holiday pay and unfair dismissal, and that at an earlier preliminary hearing on 11 April 2023 the claimant accepted he did not have the qualifying service for an ordinary unfair dismissal complaint, which was dismissed on withdrawal.

The tribunal accepted that the respondent had established the ground for strike out because the claimant had failed to exchange a witness statement by the ordered date, and his statement was only sent to the tribunal on 20 November 2023. That failure meant the listed final hearing could not proceed as planned. The judge also considered the two-stage approach to strike out, referred to the need to do justice between the parties, and relied on the fact that the claim was otherwise ready for hearing, with particulars exchanged, documents disclosed and witness statements served.

The tribunal decided that strike out would not be proportionate. It found that the claimant's witness statement largely repeated his earlier particulars rather than taking unfair advantage from late receipt of the respondent's evidence, that the respondent had not shown real prejudice from the postponement, and that the events in issue were relatively recent. The judge said a fair hearing was still possible and that a lesser sanction, such as costs, could address the default.

The judge also allowed the claimant to add factual particulars to his existing race discrimination, race harassment, victimisation and wages claims, but refused to permit new legal claims such as whistleblowing and Sunday working because they had not been properly applied for and were unsupported by factual detail. The case was listed for a four-day in-person final hearing in May 2024, with a French interpreter, and the respondent was given permission to file amended grounds of resistance responding to the clarified race allegations and protected acts.