Mr T K Brian v Accrol Papers Limited — 2020

Mr T K Brian presented a claim of constructive unfair dismissal on 21 September 2017. The case was stayed in January 2019 while a personal injury claim was pursued, and at a preliminary hearing on 25 February 2019 Employment Judge Holmes ordered the claimant to provide further particulars of the claim and a schedule of loss by 15 April 2019. He did not comply, and after the respondent sought an unless order, the tribunal ordered compliance by 12 August 2019.

The claimant still did not provide the required information. The claim was automatically struck out on 12 August 2019 and formally notified as struck out on 21 September 2019. He later indicated that he wished to have the case reinstated, but repeatedly failed to provide the witness statement or explanation that he had been asked to submit in support of that application.

At the hearing on 8 September 2020, the claimant said he had struggled to get help and might now be able to obtain legal advice, but he had not identified a representative or given a clear timetable for compliance. Employment Judge Sharkett applied rule 38(2), considering the reason for the default, the seriousness of the non-compliance, prejudice to the respondent, and whether a fair trial remained possible. The judge found that the claimant had been given repeated and clear directions, had not engaged with the process, had destroyed his papers, and had provided no satisfactory explanation for the failure to comply.

The tribunal concluded that reinstatement was not in the interests of justice. It found that the respondent would be significantly disadvantaged because the alleged events dated back to 2016 and witness recollection would likely have faded. The application to vary or set aside the strike-out failed, and the constructive unfair dismissal claim remained struck out.