Strike out for non-compliance


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The Employment Appeal Tribunal (EAT) has held in the case of Emuemukoro v Croma Vigilant (Scotland) Ltd that a tribunal is entitled to strike out a response when, due to the respondent's non-compliance, it is no longer possible to conduct a fair trial.

The tribunal struck out the respondent's response on day one of a five-day hearing as it had not complied with tribunal orders. This resulted in it not being possible to hold a fair trial within the allocated window for the hearing. The respondent had failed to prepare witness statements and produced a bundle that was missing many of the relevant documents.

The respondent appealed the decision arguing that strike out should only happen when a fair trial was impossible, but the EAT disagreed. It had that the tribunal was entitled to strike out in these circumstances rather than taking the decision to adjourn the hearing.

The respondent appealed the decision arguing that strike out should only happen where a fair trial would never be possible. It was a proportionate response to strike out the response rather than adjourning the hearing and causing prejudice to the claimant.

Take note: The decision in this case is a salutary reminder of the merits of being prepared for a tribunal hearing. Following Emuemukoro parties need to be aware that if they turn up at the beginning of a hearing and have failed to comply with tribunal orders to the extent that a fair trial is impossible they are likely to face a strike out order.

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