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Strike out

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Is a tribunal entitled to strike out a response when, due to the Respondent’s non-compliance, it is no longer possible to conduct a fair trial in the trial window?

Yes, held the EAT in Emuemukoro v Croma Vigilant (Scotland) Ltd.

On day one of a five-day hearing, the tribunal struck out the Respondent’s response as they had not complied with tribunal orders which resulted in it not being possible to hold a fair trial within the allocated ‘trial window’. This included not having prepared witness statements and producing a bundle that was missing many of the relevant documents.

The Respondent appealed, arguing that strike out should only happen in circumstances where a fair trial would never be possible.

The EAT disagreed, holding that the tribunal was entitled to strike out in these circumstances rather than adjourn the hearing. It is enough that, as a result of the Respondent’s conduct, a fair trial could not take place within the trial window, even if it could have taken place at a later date.

The EAT further held that the proportionate response is the ‘less drastic’ one, which in this case, was to strike out the response and make a judgment in the case, rather than adjourn the hearing and cause prejudice to the Claimant. The tribunal did not err in its approach to proportionality.