Labourer's race discrimination claim survives strike-out bid despite late witness statement
A construction labourer who alleges he was subjected to monkey chants and racist abuse can proceed with his claim after the tribunal refused to strike it out, despite his late compliance with orders.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant presented a claim on 15 December 2022 alleging race discrimination, harassment, victimisation, unpaid wages, holiday pay, and unfair dismissal.
- The claimant's unfair dismissal claim was dismissed on withdrawal at a preliminary hearing on 11 April 2023 due to insufficient service.
- The respondent applied to strike out the claim for non-compliance with tribunal orders, including late provision of a witness statement.
- The tribunal found grounds for strike out were established but decided a fair hearing was still possible and strike out was not proportionate.
- The claimant was permitted to amend his claim to include further factual particulars of existing claims but not new legal claims.
- The case was listed for a 4-day final hearing in May 2024, with a French interpreter to be provided.
Timeline
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Claimant started work
Claimant began working for the respondent as a labourer.
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Complaint about cook and supervisor
Claimant emailed HR complaining about race discrimination by the cook and supervisor Mr Chris.
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Monkey chants by contractors
On 2 and 12 February 2022, contractors made monkey chants; crime report filed.
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Dismissal in front of police
Supervisor Mr Ron dismissed the claimant in front of the health and safety manager and two police officers.
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ACAS early conciliation certificate issued
ACAS certificate issued, allowing the claimant to present a claim.
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Claim presented
Claimant presented his claim to the Employment Tribunal.
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First case management hearing
EJ Nicolle conducted a preliminary hearing; unfair dismissal claim withdrawn; further particulars ordered.
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Claimant provided further particulars
Claimant sent further particulars of his claims, including details of alleged discrimination and harassment.
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Respondent applied to strike out
Respondent applied to strike out the claim for non-compliance with orders.
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Claimant sent witness statement
Claimant sent his witness statement to the tribunal (but not to the respondent).
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Case management hearing
EJ Nicolle listed the strike out application for hearing on 12 December 2023.
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Strike out application heard
Employment Judge Brown refused to strike out the claim, allowed amendment of particulars, and listed final hearing for May 2024.
The legal issue
The tribunal had to decide whether the claimant's claim should be struck out for failing to comply with orders, such as providing a witness statement late, and whether to allow him to add further factual details to his existing claims.
The outcome
The tribunal refused to strike out the claim, allowing it to proceed to a full hearing in May 2024. The key reasons were that a fair hearing remained possible and strike-out was disproportionate. The claimant was also permitted to amend his claim to add further factual particulars of his existing race discrimination, harassment, victimisation, and wages claims, but not to bring new legal claims.
Compensation: No damages were awarded at this stage as the case was not finally decided.
Lessons & takeaways
- Tribunals are reluctant to strike out claims unless there is no realistic prospect of a fair hearing, especially where the claimant is unrepresented and vulnerable.
- Late compliance with tribunal orders can lead to strike-out applications, but the tribunal will consider proportionality and whether a fair hearing is still achievable.
- Claimants can often amend their claims to add more detail, but not to introduce entirely new legal claims, without permission.
- Employers should ensure they comply with case management orders and engage constructively to avoid unnecessary strike-out applications.
This case shows how tribunals balance procedural compliance against the right to have discrimination claims heard. The claimant, a Black African labourer, alleged he was subjected to monkey chants, racist name-calling, and a dismissal in front of police. Despite missing deadlines for a witness statement, the tribunal refused to strike out his claim, noting that a fair hearing was still possible and that strike-out would be disproportionate.
What the employer could have done differently
Ardmore Construction could have sought alternative sanctions, such as costs or a warning, rather than pushing for strike-out. The tribunal highlighted that the claimant was unrepresented and had language difficulties, which contributed to his late compliance. A more cooperative approach might have avoided the time and cost of the strike-out hearing.
Why this matters
This decision reinforces that tribunals will not automatically strike out claims for procedural failings, especially where the underlying allegations are serious and the claimant is vulnerable. It also confirms that claimants can amend their claims to add factual detail, as long as they do not introduce new legal claims. For anyone considering a similar claim, this case underscores the importance of seeking help with tribunal procedures early, but also that the tribunal will look at the overall fairness of the situation before dismissing a case.
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