Mr. M Ucar v Central England Co-Operative Limited and 1 other — 2021

The claim had originally been inadequately particularised and referred in broad terms to race and religion discrimination, harassment and victimisation. Employment Judge Camp ordered the claimant to provide further particulars in date order, including the individuals involved and the type of claim relied on. When that information was not provided by the ordered date, and no one attended for the claimant at the first preliminary hearing, Employment Judge Heap made an Unless Order requiring full compliance by 18 February 2022, failing which the claim would stand struck out.

The claimant's solicitors filed an inadequate schedule before the deadline and a further version after the deadline had passed. The tribunal treated the claim as dismissed from 19 February 2022 and the claimant then applied under Rule 38(2) for relief from sanction. Applying the factors identified in Thind v Salvesen Logistics Ltd, the judge held that the default was not the claimant's own fault, was not deliberate, and had been partially rectified by a later, compliant schedule prepared with Mr Lenihan's involvement. By the narrowest of margins, relief was granted, the strikeout was set aside, and the claim was allowed to continue.

On wasted costs, the judge applied the Ridehalgh v Horsefield three-stage approach, as approved in Medcalf v Mardell & Ors. The tribunal accepted the explanation that the counsel's non-attendance at the earlier preliminary hearing arose from a change in hearing time and a human error in instructions, and found that Thompsons' conduct was not improper, unreasonable or negligent. No wasted costs order was made. The judge noted that the matter would be relisted for a further preliminary hearing by telephone and warned that any further non-compliance could lead to strikeout.