Claimant v B Daley — 2022

The claimant presented a claim on 17 August 2021 for unpaid wages against the respondent, a sole trader in the construction business. When the listed final hearing on 7 November 2022 became ineffective because the Tribunal and respondent had not seen the claimant's documents, Employment Judge McCann converted it to a preliminary hearing, clarified the issues as unpaid wages, unpaid commission, and breach of contract in respect of travel expenses, and ordered exchange of documents by 6 December 2022 and witness statements by 13 January 2023. The matter was relisted, and on 9 February 2023 the respondent applied to strike out the claim for failure to actively pursue it and for non-compliance with Tribunal orders.

On 28 June 2023, Employment Judge Ferguson considered the application on the papers under Rule 37 of the Employment Tribunals Rules of Procedure. Applying the factors identified in Weir Valves and Controls (UK) Ltd v Armitage and the overriding objective, the Tribunal found the claimant's non-compliance significant: he had not provided documents or a witness statement to the respondent, had not remedied the default despite further opportunities, and had not confirmed compliance with the later orders sent on 23 May 2023. The Tribunal accepted that his explanations about the hearing date and his dealings with the respondent's representatives were not a satisfactory excuse. It concluded that a fair hearing was no longer possible because he had not put forward an evidential basis for his complaints, and it struck out the claim as proportionate.