Claimant v K Munro HM Inspector of Health and Safety — 2019

Stevenson Bros (Avonbridge) Ltd appealed an Improvement Notice issued by HM Inspector of Health and Safety. On the third day of the hearing, the appellant applied to strike out the respondent's response under Rule 37(1)(e) of the Employment Tribunal Rules, saying that interactions between the respondent's solicitor, Mr Herd, and the principal witness, Mrs Ross, meant it was no longer possible to have a fair hearing.

The tribunal accepted the facts Mr Herd admitted. Mrs Ross, the Health and Safety Inspector who issued the Improvement Notice on 1 March 2019, had given evidence over 10 and 11 December 2019. Mr Herd spoke with her at lunch on 11 December. After court that day he made comments including 'Much better. She is such a pain in the ass' and 'The Tribunal is with us'. On the morning of 12 December he discussed the HGV issue and whether HGVs were covered by the PUWER provisions, with a view to potentially asking a question in re-examination. The tribunal did not make findings on disputed allegations that were not supported by oral evidence.

Applying the authorities it cited on strike out, the tribunal held that the facts did not satisfy Rule 37(1)(e) because a fair hearing remained possible. It found that the tribunal could still assess the evidence already given, that it had not irretrievably lost trust in Mrs Ross or Mr Herd, and that the respondent's case was almost complete in any event because Mrs Jack was no longer being called. The tribunal considered strike out to be a disproportionate response. Instead, using Rule 41, it ruled that Mr Herd could not continue his re-examination of Mrs Ross and that her evidence would end. The response was therefore not struck out.