Chef Found Disabled Due to Knee Injury in Employment Tribunal Decision

OUTCOME: Allowed

Case Number: 3300529/2023

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

Mr [APPELLANT] v [RESPONDENT] at: Watford

On: 18 July 2024 Before: Employment Judge Alliott

Appearances For the Claimant: [redacted] For the Respondent: [redacted]

JUDGMENT

The judgement of the tribunal is that:-

1. The claimant was disabled within the meaning of the Equality Act 2010 at all material times between 17 May 2022 and 24 November 2022 by reason of a physical impairment to his right knee.

REASONS

1. This open preliminary hearing was ordered by Employment Judge Warren on 1 November 2023 to determine whether at the material time the claimant met the definition of a disabled person within the Equality Act 2010.

2. The preliminary hearing scheduled for 3 April 2024 was postponed as the claimant had a consultation later in April and the preliminary hearing on 6 June 2024 was adjourned to allow the claimant to obtain further medical evidence.

3. On 6 June 2024 Employment Judge Dick directed that the claimant should hand the order to Dr [APPELLANT] (at [COMPANY]) and Dr [NAME] (at the Department of Orthopaedics, [COMPANY]) in order to answer various questions related to the disability issue. Employment Judge Dick directed that if the information was not provided then the tribunal should be informed by 25 June 2024 because Employment Judge Dick was contemplating ordering those [NAME] to [APPELLANT] the tribunal to produce the information. The claimant told me that he did give the order to those two and that they were not interested. Whether or not that is

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2 accurate I do not know. In any event, the information requested has not been forthcoming. Clearly, it is neither proportionate nor in the interest of justice to adjourn this hearing once again to get the information. I have dealt with this case on the information that I have before me.

4. Despite the law and the requirements being spelt out to the claimant on more than one occasion he has not helped himself by failing to provide an impact statement restricted to the effects of the injury to his knee during the relevant period or to disclose complete medical records. Nevertheless, as I have indicated, I have to try this case on the information that I have.

5. There are various aspects of the claimant’s oral evidence before me that should be capable of being cross referenced and checked against documents that are either in the respondent’s possession or will be once his medical notes have finally been obtained. In particular, the claimant gave evidence that he gradually reduced the hours he worked in June 2022 before going off on an extended period of sickness on 20 June 2022. Further, the claimant told me that he attended [COMPANY] after the accident he says took place on 13 April 2022. There is a reference in the medical records that I have to the claimant seeing his GP and being prescribed naproxen, although this may be in the context of the February accident. I make clear that if important aspects of the claimant’s oral evidence to me can be demonstrated to be manifestly incorrect then I will entertain an application to reconsider this judgment. The law 6. S.6 of the Equality Act 2010 provides as follows:- “6 Disability

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on [NAME] ability to carry out normal day-to-day activities.”

7. Schedule 1 to the Equality Act 2010 provides as follows:- “2 Long term effects

(1) The effect of an impairment is long-term if—

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months…”

And “5 Effect of medical treatment

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3 (i) An impairment is to be treated as having a substantial adverse effect on the ability of the [NAME] to carry out normal day to day activities if- (a) Measures are taken to treat or correct it, and (b) but for that, it would be likely to have that effect.” 8. The Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) “[NAME]. The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. [NAME]. The time taken by a person with an impairment to carry out a normal day-to- day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. …. Meaning of ‘likely’ C3. The meaning of ‘likely’ is relevant when determining:  whether an impairment has a long-term effect In these contexts, ‘likely’, should be interpreted as meaning that it could well happen.” The facts 9. The relevant period is 13 April 2022 until 24 November 2022.

10. I have the following medical and other medial related evidence:

11. In a letter dated 16 August 2023, which I am told is from [NAME], an [COMPANY] Registrar, the following is set out:- “History – This [NAME] who works as a [NAME] had 2 falls on his knee. The first one was in February 2022 and the next was April. MRI scan was done outside which we got the images imported which showed an osteochondral defect which was proved on a arthroscopy which was done on 22 December 2022. He was found to have Grade 4 changes in the patellar femoral joint most likely cause of his symptoms. I have showed the intra operative images and tried to explain to him this was most likely caused could be the fall onto his knee to have this type of pattern of injury. Now the best way is to manage with physiotherapy. …

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4 I have made him aware because of the changes he was picked up on the scan/scope he is not likely to be asymptomatic he likely to have good and bad days. On a bad day cut down on the activities and take some analgesic which will be the best way forward at this stage.” 12. From this history I take it that the claimant’s first fall on his right knee was in February 2022. This is confirmed by two further letters. Firstly, one consequent to a clinic held on 20 June 2022 which refers to “Right knee injury sustained four months back” which would be in February 2022. Secondly, in a letter following a clinic on 21 February 2023 which states “He has a year’s history of ankle and knee injuries since February 2022”.

13. I have a fit note following an assessment on 16 March 2022 which signed the claimant off work from 8 March to 21 March 2022, the reason being given “swollen knee”.

14. In his evidence to me the claimant told me that the consequences of the February fall were not serious.

15. It is the claimant’s case that he had a second injury at work on 13 April 2022. This is disputed by the respondent. I have already quoted the extract from the letter dated 16 August 2023 wherein reference is made to an accident in April.

16. The claimant told me that following the alleged accident on 13 April 2022 he was taken to [COMPANY] by someone called [NAME]. Once the medical records have been obtained then that should be capable of being verified or not.

17. The letter following the clinic on 20 June 2022 states as follows:- “I reviewed [NAME] in the [NAME] today who is very nearly four months down the line after the above injury. He was apparently working in his kitchen when he twisted his right knee. He saw the GP who gave him naproxen and carried on with pain killers. About two weeks back he fell off the bus and injured the same right knee. He came down to [NAME] and was x-rayed and we found to have no bony injury and he was managed conservatively. In the meantime his GP has ordered an MRI scan. He is here today in the clinic and his pain and symptoms are slowly settling, but he says he still limps and when he bends down at his work in the kitchen he is having pain in his right knee. He is generally able to get on with his routine activities of daily living and he is able to walk around the house.” 18. In his oral evidence to me the claimant told me that the falling from a bus incident took place on 16 or 17 May 2022. It was not about two weeks prior to 20 June 2022. Nevertheless, in my judgment, it is clear that the claimant’s significant symptoms arising from his right knee can be dated to this fall. The claimant went off work from 20 May to 31 May 2022. I have a

Case Number: 3300529/2023

5 fit note dated 1 June 2022 which retrospectively signed him of work for that period, the reason being knee injury-suspected meniscal tear.

19. On 1 June 2022 the claimant was referred for an MRI by his GP and this was undertaken on 16 June 2022. From the extract of the letter dated 16 August 2023 already quoted, the MRI scan showed osteochondral defect. This was confirmed by the arthroscopy which was done on 22 December 2022. In the arthroscopy he was found to have Grade 4 changes in the patellofemoral joint most likely the cause of his symptoms. Although the arthroscopy took place outside the relevant period, it was confirming what had been discovered at the MRI scan on 16 June 2022, within the relevant period.

20. The claimant has produced a report from his GP dated 23 April 2024. This further confirms the position as follows:- “I am a [NAME] at the above named surgery where he [the claimant] has been registered since 19 May 2022. He presented at the [NAME] on 25 May 2022 with a swollen knee – where he was unable to bend and straight his right knee. The doctor that saw him thought he has a possible cartilage or ligamentous injury. He was referred for an MRI of his knee on 1st June 2022 – and at this point he was first signed off from work. We received his MRI knee report on 16 June 2022 which confirmed a small focal chondral defect of the medial trochlea of the patellofemoral joint. He was then seen on 4 July 2022 by Mr [NAME] of [COMPANY] Department who suggested physiotherapy. On 22 December 2022 an arthroscopy of his knee took place at [COMPANY] – these are described as Grade 4 changes on the patellarfemoral joint. It was thought this was secondary to the fall on his knee.” 21. The summary extract of the claimant’s GP notes attached to the GP report suggests that there was a consultation on 13 October 2022.

22. I have been shown a letter following a clinic held on 31 January 2024 from [NAME], [NAME] at London North West University Healthcare. This states:- “Based upon his intraoperative arthroscopic findings were significant osteochondral defect in his knee joint and the patellofemoral joint, but definitely treatment for his knee pain is to do total knee replacement.” 23. Whilst this letter and opinion is well outside the relevant period, it appears to reference back to the arthroscopic findings which in themselves confirmed the MRI scan which is in the relevant period. Consequently, it would appear that the osteochondral defect has resulted in the claimant requiring a total knee replacement.

24. Applying the test as to whether the condition could well last more than 12 months, in my judgment looking at the position from 17 May 2022 when the claimant fell on his knee from a bus as confirmed by the MRI scan held on 16 June 2022 the condition with his knee could well have lasted more than 12 months.

Case Number: 3300529/2023

6 25. I now turn to consider whether the condition of the claimant’s knee had a substantial adverse effect on the claimant’s ability to undertake day to day activities.

26. Following the alleged accident on 13 April 2022 the claimant returned to work. The claimant in his impact statement references the symptoms gradually developing. I accept that evidence. In my judgment, on his return to work on 13 April the claimant could not be said to have a substantial adverse effect on his ability to undertake day to day activities.

27. The claimant’s impact statement does not really reflect the relevant period. In his oral evidence the claimant told me that he had difficulties with his mobility. He stated he could not stand for more than two or three hours, had to lie down after a shower, and said that due to pain he had difficulties cooking and bending. Significantly, he said things took a lot longer. For example, walking to the [NAME] would take him 20 minutes whereas it would normally have taken him 10 minutes. He referenced difficulties putting laundry in the washing machine. He said reaching high was difficult because his balance was poor because of his bad leg. In particular, the claimant gave me evidence that on his return to work on 2 June 2022 he had difficulties at work and gradually had to reduce his hours. He would normally work 5am-6pm but was starting at about 8.30-9 and due to his leg condition he was finishing at 4 rarely at 5.

28. Inevitably, I have looked to see what the contemporaneous evidence is of restrictions on the claimant’s ability to undertake day to day activities. I have already quoted from the letter following the clinic on 20 June 2022 which references his pain and symptoms slowly settling but also refers to him limping and when bending down at work in the kitchen he was having pain in his right knee. There is a reference to being able to get on with his routine activities of daily living and an ability to walk around the house.

29. More significantly, on the claimant’s return to work on 2 June 2022 he had a risk assessment on 14 June by the respondent.

30. The risk assessment references “knee injury - suspected meniscal tear” and recites the medical advice on his fit note:- “Avoid heavy lifting, flexibility around his duties at work and regular breaks from standing.” 31. The risk assessment references that the claimant was mostly affected by his condition in the late afternoon and states that breaks would allow his leg to rest and reset. The following is recited:- “Duties with bending, lifting any equipment or products that is heavier than 10kg or stretching will be avoided. Any lifting for more than 12kg give the leg discomfort. Specific duties to avoid

Case Number: 3300529/2023

7 Syrup making must be avoided as give [NAME] discomfort on the leg when the syrup is poured at once. I would suggest that the syrup is broken down into two separate portions of 2.5l before he continues. Bending and reaching products stored on bottom shelves. Stretching to reach products store on high selves. Use of the hoover. Pushing kitchen trolleys, especially when fully loaded. Using the dishwasher needs to be avoided as the stretching when closing the equipment creates discomfort to the leg.” 32. Albeit that those are in the work context, I take them all to be normal day to day activities and that there was a substantial adverse effect on his ability to undertake them.

33. Further, whilst there may be a natural tendency to emphasize the restrictions on the ability to undertake normal day to day activities, I accept that the claimant’s mobility was restricted from 17 May onwards by reason of his right knee and that his ability to stand, bend his leg, stretch and reach high were all impaired to the effect that it compromised the time it took him to walk outside his house and to do such ordinary activities as cooking and putting laundry in a washing machine.

34. The claimant was signed off work from 20 June until 1 September 2022, the reasons being given knee injury and disorder of patellofemoral joint.

35. I have a return-to-work interview form following the claimant’s return to work on 2 September 2022. Reference is made to the reason for the absence being that the claimant could not move his right leg properly.

36. The form does pose the question, “Is this a recurring problem?” and the answer given is “No”. However, I take into account that there is an economic imperative for people to return to work even when still suffering the effects of an injury. Further, by this time the claimant had had some physiotherapy and was taking, so the claimant told me, analgesics. I am required to disregard the effects of that treatment in my assessment of his capabilities. Consequently, I set no great store that the claimant returned to work with restrictions from 2 September 2022.

37. The claimant had a further period absent from work from 3 October to 17 October, the reason being given as knee injury.

38. Thereafter there were various short periods of absence from work. Some of the reasons given are disputed by the parties in that the respondent says the claimant was absent without leave whereas he says he was told to stay away. The claimant references two of the absences being for a GP visit and in order to consult a physician, which again can be checked and ascertained once the medical notes have been obtained.

Case Number: 3300529/2023

8 39. In my judgment the substantial adverse effect on the claimant’s ability to undertake day to day activities continued during this period and, if anything, deteriorated. Whilst it is outside the relevant period, shortly after 24 November the claimant went off on long term sickness absence on 30 November 2022.

40. Consequently I find that the claimant was disabled within the meaning of the Equality Act 2010 from 17 May 2022 until 24 November 2022 by reason of a physical impairment to his right knee.

_____________________________

Employment Judge Alliott

Date: 1 August 2024

Sent to the parties on: 30 August 2024

For the Tribunal Office

Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

Case Number: 3300529/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondent: [redacted] Watford Employment Tribunal

On: 14 February 2025 Before: Employment Judge Alliott

Representation Claimant: [redacted] Respondent: [redacted]

JUDGMENT

The judgment of the tribunal is that:

1. Upon reconsideration, the judgment dated 1 August 2024, sent to the parties on 30 August 2024, is varied as follows:- 1.1 The claimant was disabled within the meaning of the Eqaulity Act 2010 at all material times between 20 June 2022 and 24 November 2022 by reason of a physical impairment to his right knee.

2. The respondent’s application for a strike out order is dismissed.

3. The claimant is ordered to pay the respondent costs assessed in the sum of £8,550.

REASONS

Reconsideration 1. Rule 68 of the Employment Tribunal Procedure Rules 2024 provides as follows:- “68-(1) The tribunal may… on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked.” 2. At the hearing on 18 July 2024 before [NAME], neither I nor the respondent had the claimant’s medical records. In addition, the claimant gave evidence that went beyond the scope of his impact statement, notably in relation to reducing his hours in June 2022. The respondent had not had an opportunity to check that

Case Number: 3300529/2023

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prior to the hearing.

3. Consequently in my reasons I stated:- “There are various aspects of the claimant’s oral evidence before me that should be capable of being cross referenced and checked against documents that are either in the respondent’s possession or will be once his medical notes have been finally obtained. In particular, the claimant gave evidence that he gradually reduced the hours he worked in June 2022 before going off on an extended period of sickness on 20 June 2022. Further, the claimant told me that he attended [COMPANY] after the accident he says took place on 13 April 2022. There is a reference in the medical records that I have to the claimant seeing his GP and being prescribed Naproxen, although this may be in the context of the February accident. I make clear that if important aspects of the claimant’s oral evidence to me can be demonstrated to be manifestly incorrect then I will entertain an application to reconsider this judgment.” 4. The claimant first registered with [COMPANY] and [COMPANY] on 28 February 2022. I do not have GP records that pre-date 28 February 2022 from wherever he was registered before.

5. The GP records indicate that the claimant attended on 7 March 2022 complaining of pain in the right knee. The following is recorded:- “Symptoms started – 2 weeks ago, last 3-4 days really painful” 6. Two weeks prior to 7 March 2022 would be about 21 February 2022.

7. In my judgment I referenced a letter dated 16 August 2023 from [NAME], [COMPANY] Registrar, which stated:- “History – This [NAME] who works as a [NAME] had 2 falls on his knee. The first one was in February 2022 and the next was April.” 8. On 8 March 2022, the claimant attended [COMPANY] at [COMPANY]. The discharge letter states:- “Presenting complaint: Right knee pain History of presenting complaint: 2/52 [NAME] kneeling on the floor to clean the kitchen and felt a pain over the back of the knee.” 9. There is a local record from [COMPANY] dated 25 May 2022 which records:- “Swollen knee at work 3/12 ago, after lifting heavy stock…” 10. From the claimant’s GP notes, there is an entry on 1 June 2022 which records as follows:- “Problem: Knee injury History Injury occurred 4 months ago when registered in Harrow working in restaurant: Cleaning chest freezer: knee locked: unable to get up.” 11. In my judgment I stated:- “From this history I take it that the claimant’s first fall on his right knee was in February

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2022.” I stated that relying on the contents of the letter from Mr [NAME]. However, as recited above, it would appear that the claimant has given at least two other causes of knee pain in February 2022, namely kneeling on the floor to clean the kitchen or cleaning a chest freezer. I make clear that I make no finding of fact as to whether the claimant had a fall at work or, indeed, any other work related accident that caused pain or injury to his right knee in February 2022.

12. The claimant has relied upon an alleged accident at work on 13 April 2022. He claims that he was taken to [COMPANY] by someone called [NAME]. There is no reference in the GP notes to an attendance on 13 April 2022 or immediately thereafter. No medical documentation has been obtained from any of the hospitals whose records have been obtained showing the claimant attending on 13 April 2022 or immediately thereafter.

13. The claimant told me that he had an injury when he fell from a bus on 16 or 17 May 2022.

14. From an entry in his GP notes dated 19 May 2022 it would appear that the claimant was seen in the Urgent Care Centre at [COMPANY] on 19 May 2022. There is no document from the [COMPANY] and, as such, the presenting complaint is not known.

15. The [COMPANY] local record for 25 May 2022 states:- “[NAME], at work lifting something 6/7 ago Right knee locked, at the time, needed assistance to mobile, attended A + E – told to see GP.” 16. The claimant was prescribed Naproxen.

17. A GP record for 1 June 2022 records:- “Struggling with stairs and had a recent fall, making it worse.” 18. The discharge summary from [COMPANY] dated 3 June 2022 confirmed that that was the date the claimant fell in a bus and sustained a force flexion injury to the right knee. That report also records:- “HPC: Has ongoing right knee pain for about 2/52 Started after bending down to his knee at work.” 19. When that refers to is unknown, but it is a possible fourth cause of the onset of the claimant’s right knee pain.

20. Following the accident on 3 June the claimant had some days off work and returned to work on 8 June 2022. For the week 13-19 June 2022 the claimant worked full days.

Accordingly, he was not reducing his hours at that time.

21. As recited in my judgment, the claimant references the symptoms gradually

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developing.

22. The physical impairment to the claimant’s right knee remains as per my judgment. It was shown in an MRI scan conducted on 16 June 2022 which was in turn confirmed by an arthroscopy conducted on 22 December 2022.

23. In my judgment I assessed the onset of substantial adverse effects on the claimant’s ability to undertake day to day activities from the date of the bus accident on 16 or 17 May 2022. Given the new information, I put that date back. Doing the best I can, in my judgment the substantial adverse effect on the claimant’s ability to undertaken day to day activities began when he went off long- term sick on 20 June 2022.

24. I have accordingly revised my judgment. Strike out application The law 25. I have lifted much of the law on strike outs from the judgment of Mrs Justice Stacey in the case of [NAME] v [COMPANY] and others [2023] [NAME] 152.

26. Where the exercise of a power may result in a terminating ruling, such as a decision to strike out a claim or response, the exercise of the discretion must also be approached through the lens of the Court of Appeal authority of [COMPANY] v James [2006] IRLR 630: “5. This power [a reference to what is now the power to strike out for unreasonable conduct under Rule 37(1)(b)] as the employment tribunal reminded itself, is a draconian power not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. … 20. It is common ground that, in addition to fulfilling the requirements outlined in paragraph 5 above, striking out must be a proportionate measure.

21. It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law… has for a long time taken a similar stance: See Re [COMPANY] [1992] 1 WLR 11 96, especially at 1202 E-H. What the juris prudence of the [[NAME] has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact if it is a fact that the tribunal is ready to try the claims: or as the case may be that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that history of unreasonable conduct which has not

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until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for strike out. It is an important check, in the overall interests of justice, upon their consequences.” 27. The lead reported case specific for strike out for non-compliance with an order is [COMPANY] v Armitage [2004] ICR 371. The relevant paragraphs from the judgment are as follows:- “13 What are the principles on which the employment tribunal should act in deciding whether to strike out in a case such as this, where there has been a breach of a direction? 14. Where the unreasonable conduct which the employment tribunal is considering involves no breach of a court order, the crucial and decisive question will generally be whether a fair trial of the issues is still possible… 15. Even if a fair trial as a whole is not possible, the question of remedy must still be considered so as to ensure that the effect of a debarral order does not exceed what is proportionate; [NAME] v [NAME] at pages 23-25. For example, it may still be entirely just to allow a [NAME] to take some part in a question of compensation which he is liable to pay: See page 25.

16. Those principles apply where there is no disobedience to an order. What if there is a court order and there has been disobedience to it? This is an additional consideration. The principles which we have set out above do not apply in the same way. The Tribunal must be able to impose a sanction where there has been wilful disobedience to an order: [NAME] v [NAME] at paragraph 25, [NAME] v [NAME] at page 22.

17. But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.” 28. In the unreported case of [NAME] v [COMPANY] of Scotland UK [NAME] 0301/15/JOJ & [NAME] ([NAME]) Simler P (as she then was) the issue was considered in some depth in the specific context of an application under Rule 37(1)(c). “12. It is common ground and accepted by Mr [NAME] that in deciding whether to strike out a party’s case for non-compliance, tribunals must have regard to the overriding objective of seeking to deal with cases fairly and justly. That is the guiding principle and requires consideration of all the circumstances and, in particular, the following factors: The magnitude of the non-compliance; whether the failure was the responsibility of the party or his or her representative; the extent to which the failure causes unfairness, disruption or prejudice; whether a fair hearing is still possible; and whether striking out or some lesser remedy would be an appropriate response to the disobedience in question.” 29. She had thus adopted the checklist in [NAME]. She continued: “13. Even in a case where the impugned conduct consists of deliberate failures in

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relation, for example, to disclosure, the fundamental question for any tribunal considering the sanction of a strike out is whether the party’s conduct has rendered a fair trial impossible.” 30. Of the trio of cases listed by Sedley LJ at [NAME] she set out the four stages identified by [NAME] in [NAME]:- “(i) There must be a finding that the party is in default of some kind falling within Rule 37(1). (ii) If so, consideration must be given to whether a fair trial is still possible and save in exceptional circumstances, if a fair trial remains possible, the case should be permitted to proceed. (iii) Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed. (iv) If strike out is the only proportionate and fair cause to take, reasons should be given why that is so.” 31. A further relevant authority is the judgment of [NAME] in [NAME] v [NAME] (Scotland) [2022] ICR 327: “26. If there are several possible responses to unreasonable conduct, and one of those responses is “less drastic” than the others in achieving the end for which the strikeout power exists, then that would probably be the only proportionate response and the others would not. There may be cases, which are likely to be rare, in which two or more possible responses are equal in terms of their efficacy in achieving the desired aim and equal in terms of any adverse consequences. However, in most cases there is likely to be only one proportionate response which would be the least drastic of the options available.” 32. Applying the legal principle to the facts of the case before he noted the following:- “28. It was a highly relevant factor, as confirmed by the Court of Appeal in [NAME], that the strike out application was being considered on the first day of the hearing. The parties were agreed that a fair trial was not possible in that hearing window. In other words, there were no options, such as giving the respondent more time within the trial window to produce its witness statements or prepare a bundle of documents, other than an adjournment. If an adjournment would result in an acceptable prejudice (a conclusion that is not challenged by the respondent), then that leaves on the strike out. The tribunal did not err in considering the prejudice to the respondent; indeed, it was bound to take that into account in reaching its decision.” The procedural history 33. During the course of 2024 the respondent has made no less than four applications to strike out the claimant’s claim. The respondent contends that there has been consistent, willful and extreme breaches of orders by the claimant.

34. On 23 April 2023, the claimant was ordered to provide an impact statement and medical evidence by 22 May 2023. The claimant failed to comply.

35. On 26 June 2023, Employment Judge Warren ordered the claimant to provide

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medical evidence and an impact statement by 14 August 2023. The claimant failed to comply in that he only served four letters, and these were disclosed late.

36. On 1 November 2023, Employment Judge Warren clearly explained in great detail the requirements for demonstrating that the claimant was disabled at all relevant times. It was made clear to the claimant that he needed to approach his medical advisors for a letter to confirm the extent to which his ability to undertake normal day to day activities was affected. The claimant was ordered to serve any further medical evidence he had obtained on the respondents by 15 February 2024.

37. The claimant failed to serve his medical records by 15 February 2024.

38. On 28 March 2024, the preliminary hearing listed for 3 April 2024 was postponed. Employment Judge Quill ordered the claimant to disclose to the respondent all the medical evidence that he would be relying on at the preliminary hearing to prove that he was disabled by 30 April 2024. The claimant was warned that breaches of the orders might result in the claim beings truck out. The claimant did not provide medical evidence by 30 April 2024.

39. On 6 June 2024, Employment Judge Dick directed that the claimant should request certain information from his GP and consultant.

40. On 18 July 2024, the case came before me to deal with the issue of disability and case management. The claimant had not obtained the requested information from [NAME]. I proceeded on the basis of an inadequate impact statement and in the face of a lack of medical records.

41. The claimant’s medical records have now been obtained and raise a number of issues. It is doubtful that the claimant approached [NAME] to request the information as he told me he did. There is no reference in the GP records to such an approach. Further, there is no record of any accident taking place on 13 April 2022.

42. I find that the claimant has been guilty of persistent and deliberate failure to comply with case management orders for the disclosure of his medical records. I find that that is serious and has disrupted the orderly course of this litigation.

43. I find that the responsibility is the claimant’s alone.

44. I find that it has disrupted the course of this litigation. A preliminary hearing had to be adjourned, the preliminary hearing before me proceeded on incomplete evidence and the respondent has, in my judgment justifiably, made an application for reconsideration in the light of medical records once obtained. To that extent, the respondent has been prejudiced.

45. I have to consider whether a fair hearing of this case is still possible and whether a strike out order would be proportionate. In my judgment, a fair hearing of this case is still possible given that it is scheduled for February 2026. Notwithstanding the repeated breaches of case management orders by the claimant, I consider that a strike out order would be disproportionate at this stage. In my judgment, there is a lesser sanction that would be an appropriate response to the disobedience. That sanction is an adverse costs order.

Case Number: 3300529/2023

8

46. In my judgment, the claimant’s conduct of this litigation has been unreasonable. I have been provided with a costs schedule indicating that the respondent has been put to very considerable expense. It is not possible to separate out precisely what costs have been incurred by the respondent as a direct result of the claimant’s failures. In my judgment, today’s hearing has been caused by the claimant’s failures. I allow counsel’s brief fee, but I consider £2,500 excessive and I award £1,500 plus VAT: Total £1,800.

47. I note that most of the work on this case has been done by a [NAME]. I allow 20 hours solicitor’s time dealing with these issues, 15 at Grade A and 5 at Grade D. 15 x £325 = £4,875 plus VAT = £5,850. 5 x £150 = £750 plus VAT = £900.

48.

Accordingly, I order the claimant to pay the respondent costs assessed in the total sum of £8,550.

49. I have taken into account the fact that the claimant clearly cannot afford such a sum and has very limited means. Nevertheless, he has elected to bring this claim and the only quantification he has placed on the value of his claim is £68,400. In the circumstances I consider the costs order to be fair and reasonable given the alternative was the possibility of striking out the whole of his claim.

50. There was some discussion as to when and how such a costs order is enforceable. As with all orders of the tribunal, enforcement is through the County Court. Approved by:

Employment Judge Alliott

Date: 1 April 2025

JUDGMENT SENT TO THE PARTIES ON

3 April 2025

FOR THE TRIBUNAL OFFICE

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal- decisions shortly after a copy has been sent to the [NAME].

Case Number: 3300529/2023

9

If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

Case Number: 3300529/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] HEARING

Heard at: Watford Employment Tribunal (claimant by CVP)

On: 19 November 2025

Before: Employment Judge Alliott

JUDGMENT

The judgment of the tribunal is that:

1. The factual allegations set out in the list of issues at 13. 1 and, in so far as it relates to the period prior to 20 June 2022, 13. 2 are struck out as they have no reasonable prospect of success. 2. Save as above, the respondent’s application for strike out and/or deposit orders is dismissed.

REASONS

1. I have already ruled that the claimant was only disabled from 20 June 2022. As such, the allegations of disability discrimination that relate to the period prior to that cannot succeed and must be struck out.

Case Number: 3300529/2023

2

2. The respondent’s application in relation to strike out and/or deposit order is based on the claimant’s alleged unreasonable conduct of the proceedings.

3. On 14 February 2025, I made case management orders as follows:-  Schedule of loss: 14 March 2025  Disclosure of documents: 11 April 2025  Agreeing a final hearing bundle: 23 May 2025  Final hearing bundle to be sent to the claimant: [redacted]  Exchange of witness statements: 8 August 2025

4. The claimant sent a document headed Schedule of Loss to the respondent on 7 March 2025. As such, the claimant has complied with the case management order. The respondent takes issue with the schedule of loss as it appears to be claiming various sums said to have been caused by the claimant’s personal injury. The schedule of loss does not itemise any other claims for financial loss. Clearly, the claimant cannot recover sums in relation to personal injury. The points made by the respondent may very well be valid. However, the fact remains that if and in so far as the claimant succeeds on all or any of his claims of disability/age discrimination then, subject to him proving that he has suffered injury to feelings, he will be entitled to compensation for injury to feelings. The claimant’s schedule of loss does set out injury to feelings and a sum that he is seeking to be awarded. The claimant is a litigant in person. If the claimant succeeds in whole or part it is highly likely that any remedy will be confined to a claim for injury to feelings due to the fact that he has not taken the opportunity of setting out any other claims. In my judgment, the alleged deficiencies in the schedule of loss are not such that I would strike out the claimant’s claim for unreasonable conduct.

5. As far as the remaining case management orders are [NAME], neither party has complied. It is clear that when the respondent made its application for a strike out order the respondent also asked for the case management orders to be stayed pending the determination of that issue. However, the fact remains that no stay was made and, consequently, both parties should have complied with the orders. The respondent told me that it had experienced a lack of cooperation from the claimant who said that he would not communicate by email. Be that as it may, faced with a reluctant or obstructive litigant, the respondent should nevertheless have got on with complying with the case management orders.

6. As such, I cannot conclude that the respondent’s actions have been unreasonable conduct of the litigation worthy of striking out his claim. A fair trial of the case is still possible albeit that the timescale remaining is short.

7. As far as the merits are [NAME], I take into account that whilst a strike out order in a discrimination claim is not impossible, the [NAME] has repeatedly stressed that due to the fact sensitive nature of discrimination claims it is ordinarily inappropriate in anything other than the clearest of cases. In this case the claimant has made allegations of conduct and comments made to him. I cannot conclude that he has no or little reasonable prospect of success and,

Case Number: 3300529/2023

3

consequently, I do not strike out his claims or make a deposit order. The claimant’s age discrimination claim is out of time and the full merits hearing will be able to consider all the circumstances as to whether there should be a just and equitable extension.

Approved by:

Employment Judge Alliott

Date: 26 November 2025

JUDGMENT SENT TO THE PARTIES ON

10 December 2025

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FOR THE TRIBUNAL OFFICE

Notes

All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www. gov. uk/employment-tribunal- decisions shortly after a copy has been sent to the [NAME]. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www. judiciary. uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

Case No: 3300529/2023 10.7 Judgment with reasons – rule 60

February 2025

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Watford Employment Tribunal

On: 23 February 2026

Before: Employment Judge Young

Non-Legal members: [NAME]

Mr [APPELLANT] Claimant: [redacted] Respondent: [redacted]

JUDGMENT

The claim is dismissed under Rule 47 of the Employment Tribunal Procedure Rules 2024 for the Claimant's non-attendance.

Approved by:

Employment Judge Young

Dated: 23 February 2026

JUDGMENT SENT TO THE PARTIES ON

18 April 2026

FOR THE TRIBUNAL OFFICE

Notes

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at

Case No: 3300529/2023 10.7 Judgment with reasons – rule 60

February 2025 www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription

Please note that if a Tribunal hearing has been recorded, you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced, it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/