Mr D McDicken v Loudonhill Contracts Limited — 2021

The claimant presented claims of unfair dismissal, disability discrimination and entitlement to a redundancy payment. The tribunal recorded that the ET1 and later documents did not give enough detail for the respondent to know the case it had to meet. At earlier case management hearings the claimant was ordered to provide further particulars and a disability impact statement, but the tribunal found that the responses lodged on 27 July and later were still too general and did not supply the dates, acts, omissions or other specifics required.

At the hearing on 16 November 2021 the respondent applied to strike out the claim under rule 37(1)(c) of the 2013 Rules for failure to comply with tribunal orders. The respondent argued that it still had no fair notice of the claims and that some of the disability allegations may also have raised time bar issues if they related to events in 2019. The tribunal accepted that the particulars supplied were inadequate and that the respondent could not yet have a fair hearing, but it held that strike out had to be a proportionate response and that the failure was capable of being remedied.

The tribunal referred to Baber v Royal Bank of Scotland Plc and Daly v Northumberland Tyne and Wear NHS Foundation Trust in considering whether a fair trial was still possible. It concluded that, although the claimant had failed to comply with the orders and the respondent had a strong complaint about lack of fair notice, the case should not be struck out at that stage because discrimination claims attract a strong public interest and the defect could still be corrected. The respondent's application was refused, the claimant was given four weeks from 29 November 2021 to comply with the earlier order, and a further preliminary hearing was to be arranged. The tribunal noted that a future costs application could be considered and that strike out might need to be revisited if non-compliance continued.