Late disclosure by employer not enough to strike out defence

This case shows that tribunals will not automatically strike out an employer's defence even when there has been a significant failure to comply with disclosure orders. The former employee argued that the employer's late disclosure — documents sent almost nine months after the deadline — made a fair trial impossible. However, the tribunal found that the delay was caused by the employer's previous solicitors and was not deliberate or vexatious.

What the tribunal considered

The tribunal emphasised that striking out is a draconian step, especially in discrimination cases. It noted that the employer had a detailed defence and that the issues in dispute — including whether the employee had the two years' service required for an unfair dismissal claim — needed to be decided at a full hearing. The judge also pointed out that even if the response were struck out, a remedy hearing would still need to address jurisdictional issues like service length and time limits.

What the employer did right

The employer instructed counsel and provided a robust skeleton argument. The tribunal accepted that the late disclosure was due to errors by the employer's former solicitors and that it was unlikely to be repeated. The employer also argued that being prevented from defending the claims would harm its reputation as a provider of services to vulnerable children — a factor the tribunal took into account.

What this means for similar claims

For employees, this case is a reminder that procedural failures by the other side do not automatically win your case. You need to show that the failure has made a fair trial impossible, not just inconvenient. For employers, it shows that even serious disclosure errors can be excused if they are not your fault and you take steps to remedy them promptly. The case also highlights that disputes over qualifying service are often dealt with separately and may not be resolved at a strike-out hearing.