In person For the v Respondent — 2022

At the start of the full merits hearing, Mr Mohammed applied to strike out the respondent's response under Rule 37(1)(c), (d) and (e) of the Employment Tribunals Rules of Procedure 2013, relying on alleged non-compliance with tribunal orders. He said the respondent's failures had affected preparation for the hearing, showed that the response had not been actively pursued, and meant that a fair hearing was no longer possible.

The tribunal reviewed the chronology of disclosure, bundle preparation and exchange of witness statements. It found that the bundle and statements had been completed very late, and that responsibility for the delay lay in part with the respondent, particularly during a period of unforeseen personal issues, but also in part with the claimant because his disclosure was not provided by the agreed date and had to be resent in smaller parts after an unreadable attachment.

The tribunal held that strike out is a severe sanction and that the circumstances did not justify it. It found that there had not been a failure by the respondent to actively pursue the response, and that a fair hearing was still possible because the claimant had already received the respondent's disclosure and witness statements had now been exchanged.

The claimant was asked whether he wanted a postponement if the strike out application failed, but he did not seek one. He asked for flexibility and assistance in locating pages in the bundle, and the tribunal indicated that it would assist with that, including help from respondent's counsel. The only judgment in this decision was that the strike out application was refused; the merits claims were not determined in this judgment.