Miss O Motajo-Adebayo v Precious Homes Limited RECORD OF A PRELIMINARY HEARING — 2024

This was a preliminary hearing on 5 July 2024 before Employment Judge Richard Wood sitting with Mrs J Costley and Mrs F Betts. The claimant applied under rule 37(1)(c) to strike out the respondent's response because of non-compliance with orders made by Employment Judge Davidson on 12 March 2024. The hearing was also listed primarily to decide whether the claimant had a disability at the relevant time and whether the respondent had knowledge of any disability, but no merits findings on those issues were made in this decision.

The tribunal recorded that compliance with the March directions had not occurred until 3 July 2024 for a hearing on 5 July 2024. The claimant had not seen the bundle or the respondent's witness statement until a day or so before the hearing, and the claimant had not provided a witness statement. The tribunal accepted that there was likely to be some prejudice to the claimant if the hearing proceeded as listed.

However, the tribunal held that strike-out would be a severe sanction and disproportionate in the circumstances. It noted that this was the first such failure by the respondent, that the respondent had a viable defence which would be lost if the response were struck out, and that the prejudice to the claimant could be addressed by a lesser sanction such as an adjournment. The tribunal also noted that the claimant was to some extent culpable because she had not provided a witness statement. The application was dismissed and the matter was adjourned for a further preliminary hearing.