Four minutes late: tribunal sets aside strike-out after representative's failure
A former employee's claim was struck out after her witness statement arrived four minutes late. The tribunal set aside the strike-out, finding she was not at fault and a fair hearing remained possible.
2 min read · Last updated 18 May 2026
Case details
- #unless-order
- #strike-out
- #set-aside
- #delay
- #representative-failure
- #witness-statement
Key facts
- The claimant presented claims of unfair dismissal, pregnancy and maternity discrimination, sex discrimination, and holiday pay on 2 April 2020.
- The claimant's representative, Mr E Buck, failed to inform her of the final hearing date listed for 22 November 2022.
- The tribunal made an unless order on 18 November 2022 requiring the claimant to provide her witness statement by 9am on 21 November 2022.
- The claimant provided a password-protected witness statement 4 minutes after the deadline.
- The tribunal set aside the strike out order, finding the claimant was not deliberately at fault and a fair hearing remained possible.
- The claim was relisted for a 5-day final hearing starting 12 June 2023.
Timeline
-
Claim presented
The claimant presented complaints of unfair dismissal, pregnancy and maternity discrimination, sex discrimination, and holiday pay.
-
ET3 response
The respondent presented its response to the claim.
-
Case management hearing
A preliminary hearing was held; witness statements were ordered to be exchanged in February 2021.
-
Postponement application
The claimant applied to postpone the final hearing due to a GP report and her representative's illness; the tribunal granted the postponement.
-
Strike out warning
The tribunal issued a strike out warning because the claimant had not provided dates of availability.
-
Notice of hearing
The tribunal sent a notice of hearing for a 5-day final hearing starting 22 November 2022 to the claimant's representative.
-
Unless order
The tribunal made an unless order requiring the claimant to provide her witness statement by 9am on 21 November 2022.
-
Claimant provided password-protected statement
The claimant emailed a password-protected witness statement at 9:04am, 4 minutes after the deadline.
-
Claim struck out
The tribunal confirmed the claim was struck out and the hearing vacated.
-
Set aside hearing
Employment Judge Brown set aside the unless order and strike out, relisting the claim for a final hearing starting 12 June 2023.
The legal issue
The tribunal had to decide whether to set aside an unless order and consequent strike-out, considering whether it was in the interests of justice to do so.
The outcome
The tribunal set aside the unless order and strike-out, and relisted the claim for a 5-day final hearing starting 12 June 2023.
The key reasons were:
- The claimant was not deliberately at fault; she had been let down by her representative who failed to inform her of the hearing date.
- The claimant provided a password-protected witness statement only four minutes after the deadline, showing she had complied in substance.
- A fair hearing remained possible, and the prejudice to the claimant outweighed any prejudice to the respondent.
No compensation was awarded as this was a procedural ruling, not a final judgment.
Lessons & takeaways
- If you are represented, make sure you have direct contact with the tribunal in case your representative fails to pass on important communications.
- An unless order is a final warning — missing even a short deadline can result in your claim being struck out automatically.
- If your claim is struck out due to your representative's mistake, you can apply to set aside the strike-out if you were not personally at fault.
- Tribunals will consider the interests of justice, including whether a fair hearing is still possible, when deciding whether to set aside a strike-out.
A costly four-minute delay
This case shows how a minor administrative slip — a witness statement arriving four minutes late — can lead to a claim being struck out, even when the claimant herself was not to blame. The former employee had been pursuing claims of unfair dismissal, pregnancy and maternity discrimination, sex discrimination, and holiday pay since April 2020. Her representative, a family friend acting for free, failed to tell her that a final hearing had been listed for November 2022.
When the tribunal made an unless order requiring her witness statement by 9am on 21 November 2022, the claimant sent a password-protected statement at 9:04am — four minutes late. The tribunal treated this as a breach and struck out her entire claim. The claimant then applied to set aside the strike-out.
What the losing side could have done differently
The respondent, Plain Jane Limited, had applied for the unless order after months of delay. However, the tribunal noted that the claimant had been let down by her representative, who had not kept her informed. The claimant herself had contacted the tribunal two days before the deadline, asking for copies of recent correspondence because she was unaware of the hearing date. The tribunal found she was not deliberately at fault.
The respondent could have agreed to a short extension or accepted the password-protected statement as substantial compliance. Instead, the case was relisted for a five-day hearing in June 2023, adding further delay and cost for both sides.
Why this matters for similar claims
This decision reinforces that tribunals will look at the overall justice of the case, not just technical compliance. If a claimant can show they were not personally responsible for a breach and that a fair hearing is still possible, a strike-out may be set aside. However, it also highlights the risks of relying on a representative who is not a professional solicitor or barrister — the claimant's representative had already caused earlier delays and failed to communicate with her. Anyone bringing a claim should ensure they have direct access to tribunal correspondence, even if they have a representative.
Similar cases
Unfair dismissal claim thrown out after witness statements filed two days late
A former employee's unfair dismissal claim against DPD Group UK Limited was dismissed after his solicitors filed witness statements two days late, breaching an unless order. The tribunal refused to reconsider.
Former employee's claims struck out after failing to comply with tribunal order
The tribunal struck out all remaining claims brought by a former employee against London & Quadrant Housing Trust after she failed to provide required details, despite having dyslexia.
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.
Autistic employee's disability claim struck out after years of delay
A former employee's disability discrimination claim against Nuffield Health was struck out after he failed to actively pursue it for eight months, despite being given extra support due to his autism.