Miss T Pogiene v Debach Enterprises Limited — 2023

At a reserved preliminary hearing on 11 May 2023 before Employment Judge Cowen, the tribunal dealt with strike out, unless orders, deposit orders, and costs. It held that the unfair dismissal claim had been amended so that the live dismissal claim was one of constructive dismissal. The discrimination claims had been withdrawn and were not part of the live issues for this hearing. The remaining claims were constructive dismissal, unlawful deduction from wages, and holiday pay.

The respondent’s strike-out application under rule 37 was dismissed. The tribunal accepted that the claimant had not disclosed diaries with her general disclosure and that her witness statement did not properly address the wages and holiday pay claims, and it noted uncertainty about the basis of her representation and her lack of attendance at hearings. However, it found that these matters did not individually or cumulatively justify the draconian step of strike out, and that a fair trial would still be possible with lesser case management measures. The application for unless orders was also refused, although disclosure and the list of issues were to be dealt with by case management order.

The tribunal made deposit orders under rule 39(1): £900 for the constructive dismissal claim and £500 each for the unlawful deduction from wages and holiday pay claims. It said the constructive dismissal case was weak on the current material, and that there was little evidence for the other two claims. It also noted that an earlier £100 deposit order made in 2022 had been paid.

On costs, the tribunal ordered the claimant to pay the respondent £16,077.67. It found that the 11 July 2022 hearing had been postponed only after late notice of Covid illness, that the respondent had reasonably attended ready to start the hearing, and that costs directly connected with the aborted hearing and postponement should be paid.