ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107670/2020 Employment Judge: M A Macleod Miss Aniko Putter v University of Edinburgh — 2021

On 2 February 2021 Miss Putter applied to strike out the respondent's response under Rule 37, and also sought strike-out of the draft list of issues. Her complaints included an alleged failure to copy her into correspondence with the Tribunal, the respondent's request for an extension of time over the Christmas period, the use of bright yellow highlighting in the draft list of issues, and the respondent's initial position that it did not accept she was disabled. The respondent explained that its representative had sought an electronic copy of the claim form before it had been received, did not yet have the claimant's contact details or case number, and later asked for an extension of time once the claim form was provided.

The tribunal set out Rule 37(1)(a) and (b) and Rule 37(2) of the Employment Tribunals Rules of Procedure 2013 and referred to Blockbuster Entertainment Ltd v James, Ashmore v British Coal Corporation and Bennett v Southwark LBC. It stated that strike-out for unreasonable conduct requires conduct such as deliberate and persistent disregard of procedure or conduct making a fair trial impossible, and that proportionality must be kept in mind. It also held that a list of issues is not something that can be struck out, because it is intended to assist the tribunal in defining the claim, so that part of the application was not competent.

On the merits, the tribunal rejected the suggestion that the respondent's conduct was vexatious or unreasonable. It found that asking the Tribunal for an electronic copy of the claim form was a minor administrative request, that the extension application was a legitimate step which the Tribunal granted, that there was no basis for saying the respondent's representative knew the claimant would be harmed by uncertainty, and that the yellow highlighting and the initial non-admission of disability did not amount to significant breaches or to prejudice. The tribunal concluded that a fair trial remained abundantly possible and refused the application to strike out the respondent's response and the draft list of issues.