A v B: 2400488/2025 and 2400489/2025
JUDGMENT
[1]In accordance with rule 38 of the Employment Tribunal Rules of Procedure 2024, on 9 November 2025 the claimant applied to strike out the amended response which had been served on the Tribunal and the claimant on 6 November 2025.[2]On 17 November 2025 the respondent provided a response to that application. On 19 November 2025 the claimant provided a response to the respondent’s position.[3]Both parties asked the Tribunal to determine the application on the written submissions of the parties. On 19 December 2025 the Tribunal listed the matter to determined on the papers at an in chambers hearing on 22 January 2026.[4]The claimant contended that paragraphs 5.7.5, 5.41.1, 11.6.2, 11.6.3, 12.15.1, 12.15.2, 12.15.3, 12.15.4 and 12.16 were scandalous, vexatious or had no reasonable prospect of success and/or that the manner in which the proceedings have been conducted by or on behalf of the respondent has been scandalous, unreasonable or vexatious.[5]The respondent asserted that the claimant was essentially seeking an assessment of the merits of the response without an examination of the evidence.[6]Without examination of the witness evidence and documentary evidence provided by both parties it is not possible for the Tribunal to determine if the identified paragraphs have prospects of success or amount to scandalous, vexatious or unreasonable conduct by the respondent.[7]The claimant submitted that the respondent had failed to comply with the case management orders made on 7 August 2025. In particular, the respondent did not serve the amended response until 6 November 2025 despite the parties agreeing to vary the date for submission from 2 October 2025 to 18 October 2025. In addition, at the time the claimant submitted the strike out application, the respondent had not disclosed documents as it was required to do so by 30 October 2025.[8]The claimant asserted that these breaches caused her prejudice by delaying the obtaining of legal advice, determining whether an intermediary was required and shortening the time she had to consider the documents.[9]The respondent accepted the breaches but submitted that it was grappling with approximately 70 individual complaints and it underestimated the length of time required to prepare the amended response and collate the documentary evidence – which, in November 2025, amounted to some 1400 pages.[10]The Tribunal has determined that the respondent has not deliberately breached the orders or had persistent disregard for the orders but rather underestimated the task it faced when investigating the complaints made by the claimant.[11]The List of Issues was finalised at the case management preliminary hearing on 7 August 2025. The respondent sought to agree a realistic date for service of the amended response and disclosure of documents to give the claimant as much time as possible to process that information in accordance with her disability.[12]Recognising the respondent’s difficulties, the Tribunal extended time for submission of the amended response. The Tribunal understands that disclosure has now taken place and the suggested variance of the case management orders will still allow the claimant adequate time, notwithstanding her disability, to prepare for the final hearing. Therefore, a fair trial is still possible.[13]The claimant’s application for strike out of the response is refused and the matter will progress to the final hearing from 1 June 2026 – 12 June 2026. Approved by: