Background: 

The claimant’s claim was struck out by the Tribunal on foot of the claimant failing to comply with an unless order requiring his witness statement to be served on the Tribunal and the Respondent.    The claimant made an application requesting the strike out to be set aside.   

The claimant had brought a claim for unfair dismissal and sex discrimination.  The unfair dismissal claim was already struck out as the claimant did not have the requisite one years’ service.   There were issues throughout the Case Management Preliminary Hearings.  This initially began with the claimant being aggressive in one preliminary hearing, followed by a no-show, but did lead to a hearing date and a series of orders. One of these orders was the claimant to serve his witness statement by 9th May 2023.  On 23rrd April the claimant emailed the Tribunal and the respondent’s representative with the names of eight individuals saying this is the list of names for my witness statement.   A further preliminary hearing was scheduled but the claimant emailed stating he would not be attending any more preliminary hearings saying that there was a court case already listed in September.  

The Clerk of the Tribunal replied stating that the preliminary hearing would proceed in person irrespective of whether the claimant chooses to attend.  In this email it did say that an Unless Order could be made whereby the claim could be struck out if there was a failure to comply with it. At that preliminary hearing, which was attended by the claimant, an Unless Order was made in relation to the witness statement.  This required the Witness Statement by 27th June 2023.  The Unless Order was not complied with and the claim was struck out on the 28th June 2023.  On 29th June the claimant emailed to say he could not understand why the order was being processed and he could not use the ‘service’ at the Court Case.  He said that he would be taking the matter to Stephen Nolan.  The claimant stated that he had emailed his witness statement, but the Tribunal stated that they could not find it. As part of the request in setting aside the claimant was asked for his grounds yet no copy of the witness statement was ever sent as part of this.  

A preliminary hearing was convened on 20th September 2023 which the claimant did not attend.  This was followed by a further in-person preliminary hearing in November. The claimant attended this hearing where he gave evidence under oath but did not provide any documentary evidence relating to the witness statement.  Despite this the Tribunal gave a direction that 14 days would be given to allow the search for the witness statement and/or send a copy of the witness statement. The claimant responded saying sorry but that the email could not be found – there was no further correspondence.     

Outcome: 

The Tribunal found that in the interests of justice it could not grant the claimant’s application for relief from the Order striking out the claim.   This was on the basis that the claimant’s ground was that he had complied, yet there was no evidence that the claimant had done so. Despite repeated attempts after that the claimant still did not provide the email or the witness statement.  The Tribunal noted that the gravity of a strike out weighs heavily on their mind and that has informed the lenient approach that had been taken.  However, in weighing up all considerations, the strike out could not be set aside.  

Practical Guidance for Employers: 

When cases are issued, the procedure behind them can grow into a saga of their own.  This case relating to sex discrimination primarily but a great deal of time was spent in relation to the procedure and the witness statement for the claimant.  This demonstrates the leniency that is given when it comes to applying a strike out of a claimant’s claim but that there does come a point in which the interests of justice require a strike out and for that strike out to remain.  This had come after repeated attempts to facilitate the claimant in his claim without any avail. 

NI Tribunal decisions are available on the OITFET website:  http://www.employmenttribunalsni.co.uk/