Miss N Nyland v Scapa UK Ltd — 2020

This was a preliminary hearing before Employment Judge Holmes sitting alone on 24 June 2020 and 10-11 September 2020. The claimant's underlying case, presented on 3 June 2019, included sex discrimination and equal pay complaints arising out of employment between 28 July 2018 and 26 April 2019. The application before the tribunal was to strike out the response under rule 37, with the claimant relying on alleged disclosure failures, alleged inconsistencies in comparator pay evidence, a corrected travel schedule, an omitted page from the job description, missing recruitment-agency notes, and a disputed offer letter for her successor. No monetary remedy was determined in this judgment.

Applying rule 37 of the Employment Tribunals Rules of Procedure 2013, and referring to HM Prison Service v Dolby and Hasan v Tesco Stores Ltd, the tribunal held that it had to consider both whether unreasonable conduct had been shown and, if so, whether strike out was a proportionate sanction. It accepted that some of the respondent's information had been wrong or incomplete, including the original travel schedule and the omission of a page from the job description, but it was not satisfied that these matters showed deliberate or unreasonable conduct. The tribunal found that some of the disputes were genuine disagreements about existence or relevance of documents, and that issues about disclosure and relevance were better judged by the final hearing tribunal.

The tribunal also noted that the comparator-pay issues, including the later disclosure of Mr Lanty's P60 and the position as to Mr Roebuck's remuneration, did not justify striking out the response. It referred to Walton Centre for Neurology & Neurosurgery NHS Trust v Bewley when explaining that a successor comparator was of limited relevance. The tribunal considered that a fair hearing was still possible, dismissed the strike-out application, made no further disclosure orders at that stage, and treated the respondent's amendment application as withdrawn. It further recorded that the claimant did not presently have a victimisation claim before the tribunal, and that any such claim would require a proper amendment and particulars.