N M Hosie Mr R Duvenage v NSL Limited — 2019

This judgment concerned the claimant's application to strike out the respondent's response under Rule 37(1)(a), (b) and (e) of the Employment Tribunal Rules of Procedure. The tribunal refused that application.

The tribunal held that, for the purpose of the strike-out application, it had to take the respondent's averments at their highest and noted that the burden remained on the claimant to prove the substantive complaints. It was not persuaded that the response had no reasonable prospect of success, nor that the response or the respondent's conduct of the proceedings was scandalous, unreasonable or vexatious, or that a fair hearing was no longer possible. The judge considered the ET3 and Grounds of Resistance, comprising 80 numbered paragraphs, to be comprehensive and to give fair notice of the respondent's position.

In relation to breach of contract, the tribunal observed that Article 3(c) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 appeared to limit jurisdiction to claims arising or outstanding on termination of employment, and the claimant remained employed. The judge therefore stated he was minded to dismiss that complaint for want of jurisdiction unless the claimant made further representations within 14 days, but no final dismissal of that complaint was made in this judgment.

The tribunal also noted the guidance that discrimination cases are generally fact-sensitive and that strike-out should be used only in the clearest cases. It concluded that the issues between the parties would require witness evidence at a final hearing and that there was no impediment to a fair hearing.