Miss J Daly v Written submissions Graeme John Marshall and 1 other — 2020

The claimant presented her ET1 on 23 September 2019 seeking a redundancy payment, breach of contract, unlawful deduction from wages and holiday pay. At the first hearing on 6 January 2020, it became apparent that she had been formally dismissed for gross misconduct on 12 December 2019, and she applied to amend the claim to add unfair dismissal. The amendment was granted, the respondent was later allowed to lodge a late ET3, and the ET3 included an employer's contract counterclaim.

This judgment did not determine the merits of the underlying redundancy, breach of contract, unlawful deduction, holiday pay or unfair dismissal claims. It dealt with two procedural applications made by the respondent on 23 April 2020: first, that the claimant's response to the counterclaim should be treated as absent and the counterclaim proceed undefended; and second, that the claimant's claim should be struck out.

The tribunal refused the rule 21 application. It accepted the claimant's emails of 15 March and 26 June 2020 as a sufficient response to the counterclaim, noted that there is no prescribed form for a claimant's response to an employer's counterclaim, and waived the need for an express written request for extension of time.

The tribunal also refused strike out under rule 37. It rejected the respondent's case that the claim was not being actively pursued, was vexatious, or could not receive a fair hearing. The judge held that disputed issues, including the address used on the ET1 and the parties' competing account of the claimant's GDC position, required oral evidence and could not be resolved on assertions and documents alone. The case was therefore to proceed to a three-day in-person final hearing before a judge sitting alone.