ET strike outs

Premium Care Homes v. Osborne

The EAT has handed down an interesting and practical decision dealing with strike outs.

The employer had been in breach of various tribunal orders. It then turned up to a two-day tribunal hearing, having not previously served witness statements, clutching a 26-page statement which the Claimant was unable to deal with. The tribunal debarred the employer from defending the liability hearing, on the basis a fair trial was not possible, but allowed it to contest quantum.

The EAT upheld the decision to debar the employer from contesting liability. Importantly (and usefully for defaulting litigants), the EAT pointed out that an adjournment, with the consequent delay, is not usually going to be enough to mean a fair trial is not possible.

However, the two additional factors which meant a fair trial was not possible were:

• the employer had seen the Claimant's statements before drafting its own, giving it an unfair advantage; and,
• the Claimant's barrister was acting pro bono, and s/he might not have been available at any adjourned hearing.