EAT Practice and Procedure: Striking-Out/Dismissal – 1. The Employment Tribunal found that the manner in which the proceedings were conducted by the Respondent was scandalous and unreasonable on the basis that the Respondent pursued a ‘false defence’ to the unlawful disability discrimination claim and failed to comply with its duty of disclosure, despite being represented throughout. The Tribunal struck out the Respondent’s defence and gave judgment in favour of the Claimant.
2. The Tribunal’s conclusion that the Respondent put forward a false defence was based on a fundamental misunderstanding of the case and was reached without any consideration of the Claimant’s pleaded case. In fact, the clarification or amendment sought by the Respondent to its case was to bring it in line with the case advanced throughout by the Claimant. Moreover, there was no basis for a conclusion that there had been any deliberate non-disclosure of relevant documents.
3. To the extent that the Tribunal addressed the question whether a fair trial remained possible, its conclusion that a fair trial was no longer possible was based on the fundamental misunderstanding of the case. The clarification of the response considered necessary by the Respondent and/or the Tribunal was not capable of being viewed as significantly different. Nor was an adjournment inevitable. Had the Tribunal understood and identified the PCP relied on by the Claimant, it would inevitably have concluded that the amendment, whilst obviously relevant, was capable of being dealt with by the Claimant given that it coincided exactly with the Claimant’s own case. Further, there was no reason why disclosure could not be dealt with there and then; and in the absence of exploring this avenue as an alternative to the draconian sanction of a strike out the Tribunal was not entitled to conclude that a fair trial was no longer possible.
4. The Tribunal did not address the proportionality of the sanction of strike out in any event. This was an error of law. The deficiency in the pleading was capable of being rectified and the missing document capable of prompt reduction. This was not a case where the consequences of the Respondent’s failings were not capable of being remedied. Strike out was a disproportionate sanction in this case.
5. The appeal was accordingly allowed and the Tribunal’s decision on liability, remedy and the costs awarded against the Respondent all set aside.
Simpler DBE P J
 UKEAT 0096 – 16 – 1207
England and Wales
Updated: 20 January 2022; Ref: scu.567944