Emuemukoro v Croma Vigilant [2022] ICR 327

The power to strike out a claim or response under rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 can be invoked due to unreasonable conduct in proceedings. This can be either from a deliberate and consistent disregard of necessary procedural steps or when such conduct renders a fair trial impossible.

When deciding on a strike-out at the beginning of a trial, and it's found that a fair trial isn't feasible within the allocated time due to one party's unreasonable conduct, the power to strike out becomes relevant.

The decision to proceed with striking out is contingent on its proportionality. Factors include potential time and money wastage, the impact on other litigants, and the limited resources of the tribunal.

Mere oversight or unintentional negligence typically doesn't fall under the "deliberate and persistent disregard" of procedural requirements.

Case Facts & Application of the law

The claimant launched an unfair dismissal claim against the respondent employer. Despite setting clear directives and timelines in preliminary hearings, the respondents failed to adhere to any orders. On the trial's first day, the claimant sought to strike out the respondent's response due to these failures. The employment judge sided with the claimant, noting that the respondents' lack of compliance meant a fair trial wasn't possible within the scheduled five days. An adjournment would severely prejudice the claimant, who had been jobless and facing hardships for two years. Although the response was struck out, the respondents were allowed to attend the remedy hearing. The compensation amount led to appeals from both sides, with the respondents also challenging the initial striking out decision.

This case provides a useful insight to those who are considering appealing to the EAT following a decision of an employment tribunal to strike out their claim.