Striking out of defence

Case 6: The facts

Represented by the construction union UCATT, Mr Woolf and Mr Jones brought claims for outstanding allowances and holiday pay. The union applied to adjourn the tribunal hearing because the company had sent its witness statements late, but the tribunal refused and said it would deal with the matter at the hearing.

The company's solicitor believed that an adjournment would be granted at the hearing, and told his witnesses not to attend. However, the tribunal did not grant an adjournment and ordered that the company's defence be struck out, meaning that it was unable to participate in the hearing at all.

The ruling

The Employment Appeal Tribunal ruled that striking out the defence was too harsh. It noted that adjournments are not granted as a right, and that neither party should make an assumption that the adjournment request will be granted, even if they both agreed to it. However, a tribunal should not strike out a case as a punishment but should always ask whether a fair trial could be achieved.

The tribunal should have allowed the employer to make representations and cross-examine the claimants' witnesses but barred them from calling its own.

Laing O'Rourke Group Services v Woolf and Jones UKEAT/0038/05