Claim struck out after employee missed final hearing and failed to provide witness statement
A former employee's unfair dismissal claim against Sainsbury’s was struck out after she failed to attend the final hearing and did not provide a witness statement as ordered. The tribunal refused her application for reconsideration.
1 min read · Last updated 19 May 2026
Case details
- #strike-out
- #non-compliance
- #witness-statement
- #reconsideration-refused
Key facts
- The claimant did not attend the final hearing on 16 November 2023 due to illness.
- The claimant failed to provide a witness statement as ordered by Employment Judge Khan.
- The claim was struck out for failure actively to pursue it under Rule 37(1)(d).
- The claimant applied for reconsideration but did not provide a satisfactory witness statement.
- The reconsideration application was refused as not in the interests of justice.
Timeline
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Claimant provided documents to respondent
The claimant claims she handed over documents including a witness statement, but the respondent disputes this.
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Claimant emailed document list
The claimant emailed a list of documents to the tribunal, but without explanatory paragraphs.
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Claimant emailed tribunal about illness
The claimant emailed the tribunal the day before the final hearing indicating she had a suspected virus.
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Final hearing and strike out
The claimant did not attend; the tribunal struck out the claim for failure to actively pursue it.
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Reconsideration application
The claimant applied for reconsideration beyond the 14-day limit, citing illness and that she had provided a witness statement.
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Claimant emailed explanatory paragraphs
The claimant sent an email with numbered paragraphs explaining documents, which the respondent says was not provided earlier.
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Reconsideration hearing
The claimant attended with an interpreter; the tribunal refused reconsideration.
The legal issue
Whether the claim should be struck out because the claimant failed to actively pursue it by not providing a witness statement and not attending the final hearing, and whether the interests of justice required reconsideration of that decision.
The outcome
The tribunal struck out the claim under Rule 37(1)(d) for failure to actively pursue it. The claimant had not provided a witness statement as ordered and did not attend the final hearing, despite being given time to indicate if she could attend the next day. The reconsideration application was also refused because the claimant still had not provided a satisfactory witness statement and had not engaged in preparation for the reconsideration hearing.
No compensation was awarded as the claim was struck out.
Lessons & takeaways
- Always comply with tribunal orders, especially deadlines for witness statements and disclosure, or risk having your claim struck out.
- If you cannot attend a hearing due to illness, contact the tribunal immediately and provide medical evidence as soon as possible.
- Applying for reconsideration requires showing a good reason for the delay and providing the missing evidence promptly.
- Representing yourself requires strict adherence to procedural rules; failing to do so can lead to dismissal of your case.
This case illustrates how failing to comply with tribunal directions can derail an otherwise potentially valid claim. The former employee had brought an unfair dismissal claim against Sainsbury’s, but the case was struck out before it could be heard on its merits.
The central issue was the claimant's failure to provide a witness statement by the deadline set by Employment Judge Khan. She also did not attend the final hearing, emailing the day before to say she had a suspected virus. The tribunal adjourned until 12pm to give her a chance to respond, but she was not contactable. The judge concluded that the claim was not being actively pursued and struck it out.
What could have been done differently
The claimant could have ensured she provided a witness statement on time, even if it was brief. If she was too ill to attend, she should have provided medical evidence promptly and asked for an adjournment in advance. After the strike out, her reconsideration application was late and still did not include a proper witness statement, which the tribunal said was necessary to show she had actively pursued the claim.
Why this matters
Tribunals expect litigants to follow orders and engage with the process. While illness is a valid reason for missing a hearing, it does not excuse non-compliance with earlier directions. The decision to strike out was within the range of reasonable responses, and the reconsideration was refused because the claimant had still not provided the missing evidence. This case is a reminder that procedural compliance is essential, especially for unrepresented claimants.
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