Former employee fails to strike out council's response over late disclosure
An employment tribunal refused to strike out Conwy County Borough Council's response despite persistent delays in providing a List of Issues and disclosure, finding a fair trial was still possible.
1 min read · Last updated 19 May 2026
Case details
- #strike-out-application
- #unreasonable-conduct
- #non-compliance-with-orders
- #list-of-issues
- #disclosure
Key facts
- The claimant applied to strike out the respondent's response for unreasonable conduct and non-compliance with tribunal orders.
- The respondent failed to provide comments on the draft List of Issues by the deadline, despite reminders over six months.
- The respondent provided comments only a week before the preliminary hearing, and also disclosed additional documents late.
- The tribunal found the respondent's conduct was persistent but not deliberate, and a fair trial remained possible.
- The strike-out application was refused as disproportionate.
Timeline
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Preliminary hearing before Judge McLeese
Directions were issued for the claimant to provide comments on a draft List of Issues by 2 February 2023, and for the List to be agreed by 16 February 2023.
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Claimant provided comments on List of Issues
The claimant's representative provided comments as directed, but the respondent did not respond.
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Deadline for agreed List of Issues
The respondent had not provided any comments or agreement by this date.
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Respondent sent additional disclosure
The respondent emailed 1,500 pages of additional documents to the claimant's representative, but the claimant's representative claimed not to have received it.
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Claimant's strike-out application
The claimant's representative emailed an application to strike out the respondent's response for unreasonable conduct and non-compliance.
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Respondent provided comments on List of Issues
The respondent's representative provided a redrafted List of Issues, over six months late.
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Disclosure re-sent
The respondent re-sent the additional disclosure documents the day before the preliminary hearing.
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Preliminary hearing on strike-out application
Employment Judge S Jenkins heard the strike-out application and refused it, finding a fair trial was still possible.
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Judgment sent
Written reasons for the decision were sent to the parties.
The legal issue
The tribunal had to decide whether the council's failure to comply with directions on the List of Issues and disclosure was so unreasonable that its response should be struck out, and whether a fair trial could still take place.
The outcome
The tribunal refused the former employee's application to strike out the council's response. The judge found that the council's conduct was unreasonable and persistent, but not deliberate. Crucially, a fair trial was still possible because the delays had been remedied before the final hearing. Strike-out was deemed disproportionate.
- No compensation awarded as the application was refused.
Lessons & takeaways
- Strike-out is a last resort — tribunals will only use it if conduct is deliberate or makes a fair trial impossible.
- Late compliance with directions, even after months, may not justify strike-out if the other side can still prepare for trial.
- Persistent but non-deliberate delays are more likely to result in cost orders or warnings than strike-out.
- If you receive late disclosure, request it again in writing to show you tried to resolve the issue before applying to strike out.
This case shows the high bar for striking out a respondent's case, even when they have been persistently late. The former employee had to wait over six months for the council to provide comments on the List of Issues, and additional disclosure arrived only the day before the hearing. Yet the tribunal refused to strike out the response.
What the tribunal considered
The judge applied the key test from the Court of Appeal: strike-out requires either deliberate and persistent disregard of procedural steps, or that a fair trial is impossible. Here, the council's conduct was persistent but not deliberate — it had eventually complied, albeit very late. The final merits hearing was still two weeks away, so the employee could still prepare. Strike-out was disproportionate.
What could have been done differently
The council could have avoided this application entirely by engaging with the directions on time. For the employee, a more targeted remedy might have been a costs application for the wasted time, rather than seeking the nuclear option of strike-out. The tribunal noted that the employee's representative did not chase the disclosure until making the strike-out application, which weakened the argument that a fair trial was impossible.
Why this matters
This decision reinforces that strike-out is a remedy of last resort. Tribunals will consider whether the defaulting party acted deliberately and whether the other side can still get a fair hearing. For claimants, persistent delays are frustrating, but unless they make a fair trial impossible, the claim will not be struck out. A better strategy is to seek case management orders or costs for specific breaches.
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