Members: Mr I C MacFarlaneMr J Hughes v Represented by: Mrs H Hogben - Counsel Instructed by: Ms Donnelly - Solicitor Mr Christopher Houston — 2017

This was an interim judgment on the claimant's application to strike out the respondent's response under Rule 37(1)(b) and (e) during the merits hearing. The underlying case, as described by the respondent in submissions, concerned complaints of detriment under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, automatic unfair dismissal under section 152 of that Act, and unfair dismissal under section 98 of the Employment Rights Act 1996.

The tribunal accepted that the respondent's dismissing officer had acted unreasonably in contacting HR adviser Ms S about another driver, Mr L, after being told not to discuss his evidence. It also treated the discussions with other respondent personnel as inappropriate, but found no basis to conclude that the evidence had been tainted to the point that a fair hearing was impossible. The tribunal noted that there was no indication that any actual discussion of evidence had taken place with Mr M, and there was no information before it as to what was said at lunch with Ms W and Mr C.

Applying the Rule 37 strike-out principles, the tribunal held that although the conduct was unreasonable, the draconian sanction of striking out the response was not justified because a fair trial was still possible. It reasoned that the remaining evidence could still be heard, the witness's evidence could be completed in re-examination, and credibility and reliability remained matters for the tribunal to assess. The tribunal therefore refused the application to strike out the response and directed that the case should resume on 1 November 2017. It also observed that, had Ms S been a witness, it would likely have reached a different conclusion on fair-trial fairness.