Mr M Cushley v Enigma Industrial Services Limited — 2023

This decision was made in chambers in Glasgow on 7 March 2023 by Employment Judge M Whitcombe. It concerned only the respondent's application to strike out Mr Cushley's remaining claim under rule 37(1)(d) of the ET Rules of Procedure 2013 on the basis that it had not been actively pursued. The judge noted that the case had originally been one of twenty related claims in multiple 8298, that eighteen claims settled on 9 January 2023 and one earlier claim had settled on 6 January 2023, leaving Mr Cushley's case as the sole live claim.

The tribunal recorded that Mr Cushley had not complied with several deadlines set by EJ MacLean and that, when correspondence was received from Mr Aaron Fisher, it was initially unclear whether he was acting for Mr Cushley. Written authority for Mr Fisher to act was eventually provided on 3 February 2023, after the deadline set by EJ MacLean. The tribunal accepted that the claimant's conduct was far from ideal and that the emails sent in late February and early March 2023 opposed strike out, but it considered that they did not engage with the central issue of whether the claim had been actively pursued.

Applying the approach in Evans v Commissioner of Police of the Metropolis, Rolls Royce v Riddle, and the authorities on the overriding objective and fair-hearing analysis, the tribunal held that the claimant's delay had not reached the level of inordinate and inexcusable delay, nor was it intentional, disrespectful or abusive. It found that a fair hearing remained possible. The respondent's strike-out application was therefore refused, and the claim was allowed to proceed to a final hearing. The judge also noted that Mr Cushley would now need to call his own evidence because the other related cases had settled.