21 December, 2021
Is a tribunal entitled to strike out a response when, due to the Respondent's non-compliance, it is no longer possible to conduct a fair trial in the trial window? Yes, held the EAT in Emuemukoro v Croma Vigilant (Scotland) Ltd.
The case confirmed the importance of following case management orders and directions set by the Tribunal. There are times when complying with an Employment Tribunal order may not be possible, and in this situation, it is imperative that agreement is sought from the other side, as well as the Tribunal if required, to vary the an order and suggest an alternative date. This is particularly commonplace when disclosing documents, as difficulties are encountered in accessing documents. In this situation, an agreement to vary the exchange date can usually be agreed without issue and without prejudicing the case and hearing.
However, repeatedly failing to comply with directions can cause serious problems and can make a party open to a cost application against them.
In cases of severe non-compliance, the Tribunal may decide to strike out a claim or response, if they consider that the non-compliance has resulted in it not being possible to hold a fair trial within the allocated trial window. This is what happened in the case of Emuemukoro v Croma Vigilant (Scotland) Ltd UK where the Employer failed to prepare witness statements and the hearing bundle failed to contain many of the relevant documents. The Tribunal made the decision to strike out the Employer's response on the first day of the hearing, as it considered that it was no longer possible to conduct a fair trial. The result of the strike out meant that the Employee was awarded a judgement in their favour, without a full hearing taking place.
The Employer appealed, on the basis that a Tribunal should only strike out a response where it is never possible to hold a fair trial, their argument being that they should have been allowed time to rectify their errors and the final hearing be re-arranged. However, the Employment Appeal Tribunal upheld the initial decision, and confirmed that the Employer's conduct meant a fair trial could not be heard when the final hearing was listed. Further, the Employment Appeal Tribunal stated that the Tribunal's decision was proportionate, and that adjourning the hearing would have caused prejudice to the employee.
The case highlights a Tribunal's powers when there has been a failure to comply with orders and there is no subsequent readiness for the final hearing. Parties should always ensure compliance with key dates, and seek advance agreement of variation to the same if required. The decision in this case is a salutary reminder of the merits of being prepared for a tribunal hearing.
Forbes' Employment team are regularly instructed by clients in defending a range of tribunal claims brought by Claimants, including unfair dismissal, constructive dismissal and discrimination. Tribunal cases form a core element of the day-to-day work dealt with by the team and, as a result, we have extremely experienced tribunal advocates, who deal with cases from submission of a defence all the way through to final hearing.
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