Whether you are pursuing or defending a claim in the Employment Tribunal, it is extremely important that you follow the Case Management Order set by the Tribunal. The Case Management Order is the timetable for the parties to prepare and exchange documents in preparation for the final hearing.
Don’t get me wrong, there are times when complying with an Employment Tribunal order may not be possible, and in this situation, it is imperative that you seek agreement from the other party, as well as the Employment Tribunal if required, to vary the Order and suggest an alternative date. This is particularly common in respect of the disclosure of documents, as it is possible that one party can have technical difficulties or not have all of the relevant documents available. In this situation, agreement to vary the exchange date can usually be agreed without issue.
However, repeatedly failing to comply with the Case Management Order can cause serious problems and can make you open to a cost application. This is where one party applies to the Employment Tribunal, in respect of the other party’s failure to comply with the Case Management Order, and requests that costs are awarded for the additional time spent liaising with the other side to ensure their compliance. This is typically additional emails and phone calls made to the non-complying party, to request updates on when the documents will be ready to be exchanged, which is why it is better to keep the other party updated if you are going to be unable to comply with any key date.
In cases of severe non-compliance, the Employment Tribunal may decide to strike out the claim or response, if they consider that the non-compliance has resulted in it not being possible to hold a fair trial within the allocated trial window.
This is what happened in the case of Emuemukoro v Croma Vigilant (Scotland) Ltd UK.
The trial was listed for a five-day final hearing. However, the Employer failed to prepare witnesses statements and the hearing bundle failed to contain many of the relevant documents to the claim. The Employment Tribunal made the decision to strike out the Employer’s response on the first day of the hearing, due to their failure to comply with the Case Management Order. The Employment Tribunal struck out the response as they considered that it was no longer possible to conduct a fair trial.
The result of the Employment Tribunal striking out the response was that the Employee was awarded a judgement in their favour, without a full hearing taking place.
The Employer appealed the Employment Tribunal decision on the basis that an Employment Tribunal should only strike out a response where it is never possible to hold a fair trial. The Employer’s argument being that they should have been allowed time to rectify their errors and the final hearing be re-arranged as this would have allowed for a fair trial.
However, the Employment Appeal Tribunal upheld the Employment Tribunal decision, and confirmed that the Employer’s conduct meant a fair trial could not be heard when the final hearing was listed. Further, the Employment Appeal Tribunal stated that the Employment Tribunal’s decision was proportionate, and that adjourning the hearing would have caused prejudice to the Employee.
Whilst I appreciate this is an extreme case, it does highlight the Employment Tribunal’s powers where a party has failed to comply with the Case Management Order and is not ready for the final hearing.
If you are pursuing or defending an Employment Tribunal claim, I would recommend you ensure you comply with all the key dates, and seek agreement to vary the dates if required, being mindful of the risks of the other party making a costs application if you delay.
If you require any assistance with an Employment Tribunal claim or defence, my colleagues and I would be happy to discuss matters with you and offer an initial free half hour telephone or video consultation, please contact us on 01983 897003 to arrange.
Case: Emuemukoro v Croma Vigilant (Scotland) Ltd UK EAT/0014/20/JOJ. You can read the full judgement HERE: