K Mahmood v NSL Ltd (named by the respondent) Marston Holdings Ltd (named by the claimant): 2304975/2022 and 2301846/2023
JUDGMENT
The response is struck out pursuant to Rule 38(1)(c) of the Employment Tribunals Rules of Procedure 2024 for failure to comply with the Tribunal's case management orders.REASONS
Background
[1]The claimant made an application on 18 August 2024, which was renewed on 24 February 2025, for the respondent's response to be struck out due to their persistent failure to comply with case management orders. In particular, the respondent has failed to comply with orders for disclosure and file preparation as directed, despite having had ample opportunity to do so.[2]The respondent has not replied to the claimant's application despite having been served with copies on both occasions.[3]The Tribunal is gravely concerned by the issues raised in the claimant's application. The respondent's failure to comply with orders regarding disclosure and file preparation is a serious breach of the Tribunal's orders, especially given that the hearing is due to commence on 18 March 2025.[4]It is reasonable to find, on balance, that if the orders for disclosure and file preparation have not been complied with, any orders contingent on those being done have also not been complied with, such as the provision and service of witness statements. This constitutes a comprehensive failure to engage properly with the Tribunal process.[5]In the circumstances, the Tribunal cannot see how a fair trial can take place as listed. Noncompliance with these fundamental case management orders impedes the proper conduct of proceedings and severely prejudices the claimant's ability to present his case effectively.[6]It is both just and in accordance with the Overriding Objective to allow the claimant's application and to strike out the response under Rule 38(1)(c) of the Employment Tribunals Rules of Procedure 2024.[7]As a consequence of striking out the response, Rule 22 now operates. This means that the respondent is deemed liable for the claims brought by Mr Mahmood.a. The hearing listed for 18-21 March 2025 will be modified as follows:b. The hearing will proceed on 18-19 March 2025 only.c. The hearing on 20-21 March 2025 is vacated.d. The hearing will be before an Employment Judge sitting alone.e. Both parties are expected to attend.f. The hearing will address remedy only.g. The respondent may participate in the hearing only to the extent permitted by the Employment Judge at the hearing.[8]The claimant must provide a detailed schedule of loss within 7 days of this judgment, setting out all remedies and monies that he claims are payable to him. APPROVED Judge M Aspinall (sitting as an[1]This matter was listed for a remedy hearing only following the decision of EJ Aspinall to strike out the response on 5 March 2025 for non-compliance with directions. At the same time the listing of this hearing was reduced from 4 days to 2 days.[2]On 13 March 2025 the Respondent made an application for this decision to be reconsidered under Rule 68 of the Employment Tribunals Rules of Procedure 2024.[3]I determined that it was necessary to deal with this application before moving onto the remedy hearing and therefore I exercised my discretion under Rule 22(3) to allow the Respondent to address the Tribunal on the application, leaving the question of the level of their involvement in the remedy part of the hearing until the application was resolved.[4]I should note at this point that the Claimant was not happy with my decision to hear the application as he had only prepared for the remedy section of the hearing. I noted that he had responded to the application in writing already and therefore I felt that it was appropriate to continue.[5]The Respondent’s application was allowed under Rule 68 and the Response was therefore reinstated. 1 of 8 © Crown Copyright 2025[6]The Claimant requested written reasons for my decision as he indicated an intention to appeal my decision to the EAT. Those written reasons will follow in due course.[7]This was the Respondent’s application to either reconsider or set aside the order of Employment Judge Aspinall dated 5 March 2025 in which the response was struck out pursuant to rule 38(1)(c) of The Employment Tribunal Procedure Rules 2024 (“The Rules”) for failure to comply with the Tribunal’s case management orders.[8]By way of background, the claim stems back to 2022 when the Claimant brought a claim in relation to wages. He then brought a second claim in 2023 and these claims have been consolidated. The second claim included additional claims, including unfair dismissal, discrimination, and unpaid holiday pay.[9]There was a case management hearing before EJ Macey, at which point the matter was listed for a four day final hearing in January. At the same time an amendment was allowed. However, in the hearing it transpired that the Tribunal had not sent the Respondent the entirety of the Claimant’s attachment to his claim form. Because of this omission the parties were unable to finalise the List of Issues, and it is explicit from Judge Macy’s order that a further Preliminary Hearing was required. This was set out at paragraph nine of the order, and then again in bold text at the end of the provisional list of issues.[10]For whatever reason, and I do not know if this was the judge failing to file the relisting paperwork or if it was the Tribunal staff not processing it, the further Preliminary Hearing was never listed.[11]Judge Macey did set directions to prepare for the final hearing and one of these was for the Respondent to prepare a bundle for the final hearing. The final hearing was listed to take place in January 2024. It is common ground that there was some discussion between the parties over the contents of the bundle and about witness statements in December 2023. On 01 January 2024 the Claimant chased the bundle and got no response to his email.[12]As it happens, the January 2024 hearing was vacated due to one of the Respondent’s witnesses requiring surgery during the listing window. There was some suggestion in the Claimant’s submissions that this was the respondent delaying matters. I do not accept that the adjournment was a deliberate or cynical attempt to delay the hearing, there was a genuine need to adjourn due to the surgery.[13]Following the adjournment in January 2024 it would appear that the Respondent did nothing else on the bundle for quite some time. Counsel, on instruction, was quite candid that those instructing him, the in-house team of solicitors, overlooked the issue of the bundle. Apparently, there were issues obtaining passwords to access certain documents which needed to be added to the bundle and then due to a diarising error nothing happened. They also accept that they failed to reply to the Claimant’s chaser. 2 of 8 © Crown Copyright 2025[14]On 18 August 2024 the Claimant wrote to the Tribunal and the Respondent applying to strike out the response for a failure to comply with case management orders. Unfortunately, this application did not make its way before a Duty