E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4108417/2021(P)5 Held on October 2021 Employment Judge J M Hendry Mr N Hearn v Eday Community Enterprise Ltd — 2021

This was an interlocutory decision on the claimant's application to strike out the respondent's ET3 as out of time. The tribunal recorded that the claimant had brought an unfair dismissal claim and that Judge Kemp had noted references to s.94, s.98(4) and s.100 of the Employment Rights Act 1996, but those substantive issues were not decided in this judgment. The respondent explained that the ET3 problem arose from a minor administrative email error, and later sought an extension of time and to proceed with an amended response dealing with the health and safety material.

Employment Judge Hendry refused the strike-out application under Rule 37 of the Employment Tribunal Rules. The tribunal accepted that there had been some breach of Judge Kemp's order for an inventory of documents, but held that the breach was not significant, the delay was not substantial, and there was no prejudice to the claimant from the late lodging of the inventory because the hearing remained some way off. The judge also accepted the respondent's explanation for the difficulty and held that strike-out would not be proportionate or fair.

The tribunal therefore granted an extension so that the respondent could lodge the joint bundle by 30 November 2021. It also noted that the claimant had not fully addressed why he said the ET3 had changed the respondent's position, and said he would be wise to provide better and further particulars on how the health and safety matters were said to have affected the redundancy decision. No monetary remedy was awarded in this decision.