Mr D Peebles v Represented by: Mr A Bourke, Consultant Richard Lawson Autoecosse Ltd — 2020

This was a preliminary hearing by telephone on 8 September 2020 before Employment Judge A Kemp. The claimant applied to strike out the respondent's Response Form under Rule 37 on the basis that the respondent had not complied with a Rule 31 order made on 12 August 2020. The application was opposed by the respondent.

The tribunal recorded that the dispute concerned disclosure of documents said to fall within the order, including emails, a signed single-document contract of employment, and handbook material. The respondent said it had provided electronic copies of approximately 3,000 emails from the claimant's inbox and outbox, but the claimant's representative had been unable to open them. The tribunal also noted the respondent's position that no single-document contract existed, and that there was no handbook in the ordinary sense beyond disciplinary and grievance procedures and a separate sales handbook.

Applying the overriding objective and Rule 37, and referring to HM Prison Service v Dolby and Hassan v Tesco Stores Ltd, the tribunal held that there had been a reasonable attempt to comply with the order and that the incomplete compliance did not justify strike out. It considered strike out disproportionate, including because the claimant had not yet been able to access material intended to be disclosed, and it noted that any remaining disputes about the documents could be addressed in evidence at the final hearing.

The tribunal directed the respondent to provide contact details for its external IT consultant, or for Mr McCormack, or both, so that the claimant and his representative could attempt to access the emails by 4 pm on 11 September 2020. If that attempt failed, the respondent was directed to provide paper copies of the emails as soon as reasonably practicable after that deadline. The claimant's time to provide further and better particulars was extended to 18 September 2020, and the respondent's time to answer was extended to 14 days after receipt of those particulars. A further preliminary hearing had been fixed for 26 and 27 October 2020.