Miss D Klukowska v Bridge of Weir Leather Co Ltd — 2022

This judgment deals only with the Claimant's Rule 37(1)(c) application to strike out the Respondent's ET3 for alleged non-compliance with the tribunal's order of 11 August 2021. The order required the Claimant to provide information about financial loss and mitigation, and required the Respondent to state whether it would argue failure to mitigate and to confirm pension information. The Claimant said the Respondent had not complied; the Respondent said its emails of 1 and 13 September 2021 addressed Call 4 and set out its mitigation position.

Applying the Rule 37 two-stage approach and the authorities it cited, including HM Prison Service v Dolby, Hasan v Tesco Stores Ltd and National Grid Co Ltd v Virdee, the tribunal held that the Respondent had not failed to comply with the revised compliance date. It found that the Respondent had not ignored the order, that its request for clarification was reasonable on the mitigation information provided, and that the emails of 13 September 2021 gave the Claimant fair notice of the case on mitigation.

The tribunal also said that, even if there had been non-compliance, strike-out would have been disproportionate. It held that Call 4 related only to remedy and mitigation, not liability on the substantive discrimination issues, and that there was no basis to say a fair trial would no longer be possible. The Claimant's application was therefore refused.