This was a decision on a pre-hearing review. The claimant had brought claims for discrimination on the grounds of disability and race, breach of contract and unfair dismissal by way of constructive dismissal.

The claimant sought a Case Management Discussion to obtain Orders against the respondent to answer the claimant’s Notices for Additional Information and Discovery. This request was refused. The respondent’s solicitor then applied to the tribunal to strike out the claimant’s claim for failure to comply with the Orders to provide agreed issues and dates for hearing. The tribunal had to decide whether the claimant’s claim should be struck out under Rule 18(7) of the Industrial Tribunals Rules of Procedure on account of his failure to comply with orders and directions of the tribunal.

In refusing to strike out the claim for non-compliance the tribunal relied on the overriding objective as ‘the guiding consideration’. It was also recognised that the striking out of a claim was a draconian measure which should be avoided ‘if there were other appropriate steps’ available.

The tribunal held that a strike-out was not appropriate in the particular set of circumstances. The tribunal cited many of the leading cases including Blockbuster Entertainment Ltd v James [2006] in stressing that a strike-out would be an exceptional course of action which would have to be justified based on factors such as the magnitude of the default, level of disruption and any potential unfairness or prejudice.

Practical Lessons from this decision

This decision demonstrates the difficulty in persuading a tribunal to strike out a claim for procedural incompliance. The tribunal made it clear that when considering the proportionally of the response the court must carry out: "a structured examination in order to see whether there is 'a less drastic means to the end for which the strike out power exists'" In addition, the tribunal held that in considering whether or not to strike out a claim the appropriate time to do so is well before the date of the substantive hearing.