Mr Frank Elliot v Tyne Housing Association Limited — 2021

Mr Frank Elliot presented his ET1 on 22 January 2020 and this judgment was confined to the respondent's application to strike the claim out for non-compliance and/or because it had not been actively pursued. The claimant had been ordered to provide typed further and better particulars by 26 March 2020; that deadline was extended to 31 May 2020 and then to 21 August 2020, but the tribunal found that he did not comply until immediately before the February 2021 hearing. He said that library closures, limited access to computers and later Covid-19 illness explained the delay.

The Employment Judge found that the claimant had failed to comply with the tribunal's orders between 26 March and 15 November 2020. Although lockdown restrictions were accepted, the judge did not accept that the claimant had made sufficient efforts to arrange library access or that he was entirely unable to use email or basic computer functions; the judge relied on emails from the claimant and the typed further particulars to find that he had a basic understanding of those tools. The judge also found the claimant to be an unreliable witness and considered his sending of a very large volume of messages to the respondent's counsel unreasonable.

Applying Rule 37 and the approach in Evans and anor v Commissioner of Police of the Metropolis and Birkett v James, the tribunal nevertheless refused strike out. It accepted that some of the delay was attributable to illness and the Covid-19 pandemic, held that the delay was inordinate but not wholly inexcusable, and concluded that a fair hearing was still possible. The respondent's strike-out application was dismissed and the judge warned that further delay could still lead to strike out.