Disability Discrimination Claim Dismissed Due to Lack of Evidence

OUTCOME: Dismissed

Case No: 3307564/2020 10.8 Reasons – rule 62(3)

March 2017

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Bury St Edmunds ([NAME])

On:

6 May 2022

Before: Employment Judge Laidler (sitting alone)

Representation

Claimant: [redacted]

Respondent: [redacted]

JUDGMENT having been sent to the parties on 30 June 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

1. The parties were given an oral judgment in this matter and written the judgment sent to the parties on the 30 June 2022. It appears that the claimant made a request for written reasons on the 19 May and 13 July 2022. These requests were not referred to the judge until the 11 October 2022.

2. This hearing was listed to determine the issue of disability the claimant relying on medial epicondylitis and painful arc syndrome. At a preliminary hearing for case management held before Employment Judge Milner-Moore on the 13 July 2021 the hearing had been listed for the 7 January 2022. Employment Judge Michell was listed to hear the matter on that date but the hearing had to be adjourned by him as the claimant had not been able to [APPELLANT]. The full merits hearing remained listed for the 21 – 23 March 2022. That hearing was before Employment Judge Wyeth who heard but refused an application to strike out the claims due to the failure by the claimant to comply with orders and actively pursue her claim. The full merits hearing was relisted for the 5 & 6 December 2022 and this Open Preliminary Hearing listed.

3. The ET1 was received on the 3 August 2020. Despite there having been four previous case management hearings the claimant filed a supplemental

Case No: 3307564/2020 10.8 Reasons – rule 62(3)

March 2017

impact statement the day before this Hearing. It had attached to it a 3 page document containing a table with questions on one side and answers to those on the other. This was dated the 3 May 2022 and had the name of [NAME] pp for [NAME], described as ‘[NAME]’. It was not signed. The tribunal was not to hear from [NAME]. Having heard submissions regarding its admissibility the tribunal refused to allow it to be relied upon.

The tribunal’s conclusions on the up dated impact statement.

4. There have been 4 preliminary hearings in this matter. The claimant has been represented throughout. The impact statement was ordered at the 1st of those hearings and it could not have been clearer what was required. If the claimant was not advised as to what was required that is a matter between her and her representative.

5. It is not proportionate or in accordance with the overriding objective that this case to be postponed again. It was nearly struck out at the last hearing and now needs to proceed.

6. It is not just the matter of the amended impact statement but the physiotherapy statement attached to it. It is not known how that came about and what instructions were given to [NAME]. The case of De [COMPANY] v Wilson [2001] IRLR 324 EAT gives guidelines on the preparation of joint reports and even though this does not purport to be a joint report the respondent had no input into the questions and the tribunal does not have any details of how [NAME] was instructed. It is even doubtful if the tribunal has the whole document.

7. The tribunal also needs to bear in mind that it is [NAME] with whether the claimant was disabled at the date of the acts complained of and not relevant what occurred after neither must it take that into account.

8. For these reasons the claimant’s application to rely upon this amended statement was refused

9. The tribunal heard from the claimant who relied on her impact statement in the bundle at page 106 which is unsigned but it was advised that it was dated 5 January 2022.

10. The respondent had earlier conceded that the claimant had:

a. an arm and shoulder injury which occurred at the end of December 2019 and b. that the injury had an adverse effect on her ability to carry out normal day-to-day activities

It did not however accept that the effect was substantial, that it had lasted or was likely to last more than 12 months.

11. The acts complained of were identified at an earlier case management hearing as being between January to 20 March 2020 the date of termination.

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March 2017

12. The claimant had commenced employment on 21 October 2019. Her last day of employment was the 20 March 2020.

13. In December 2019 having had to push her father around hospital in a wheelchair she suffered pain in her right arm.

14. It is documented that she saw her general practitioner on 13 January 2020 with right arm pain. It was noted she was right-handed. She was diagnosed with medial epicondylitis and painful arc syndrome and referred for physiotherapy which she engaged in. At the time the doctor suggested that she should consider reducing hours of work as it was felt that her arm symptoms plus her stress of caring for relatives could have an impact on her work. This was set out by Dr [NAME] (page 129) in a letter dated the 3 April 2020 which the claimant sent to the respondent at the appeal stage (after the end of her employment)

15. The claimant states at paragraph 13 of her impact statement that the suggestion that her hours be reduced was only related to work issues but this is not consistent with the doctors letter referred to above in which he stated that ‘It was felt that her arm symptoms plus her stress with caring for her relatives would have an impact on her work’.

16. The claimant also referred to this at her probation review meeting (p117) which will be referred to in more detail below. The claimant is noted as stating that the doctor ‘could see how much I’ve been doing caring for my elderly parents’

17. No sick notes were seen by the tribunal and the claimant did not give evidence of any period off work in relation to her arm injury. The claimant relies on a [NAME] report dated 26 August 2021 (p98). It is not really in the form of a report but answers to questions. The tribunal did not hear from [NAME]. Of relevance are the answers to questions 4 and 7:

Q4 - If you do know the date of diagnosis has the condition lasted (or is likely to last) for 12 months or more.

The answer given was yes

Q7 Has this effect(s) lasted for or likely to last more than 12 months?

The answer was yes

having not heard from [NAME] the tribunal cannot be satisfied that she was considering these questions from the viewpoint of what would have been known in the period with which this tribunal is [NAME] mainly January to March 2020. Clearly by the time she did her report in August 2021 the condition had lasted for more than 12 months and that was known.

18. In the same report however at the end is set out what the claimant reported on 11 March 2020 when she attended her first physiotherapy appointment. She reported ‘difficulties in using her arm with daily living such as cutting vegetables’, also lying on her right side and carrying heavy objects. Her condition was eased by resting, massage and previously prescribed exercises. She did not report any difficulties with sleeping, numbness or specific time of day when pain was at its worse. The claimant was not on any medication that had been prescribed. She does make reference elsewhere to taking painkillers. On

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March 2017

examination the claimant had near full pain-free active range of movement of her cervical spine except reporting a stretch sensation on stretch to opposite side flexion. She was pain-free active range of movement shoulders elbows, wrists and thumbs. Muscle strength of right shoulder, elbow and wrist were observed as 5/5 on oxford scale. The right grip and opposition of thumb were noted as normal. Thoracic spine rotation was noted as stiff and was reduced bilateral (1/2 range of movement)

19. A diagnosis of myofascial tension was suggested and she was taught and issued a home exercise programme of upper limb, Thoracic and cervical stretches. Subsequent attendances referred to in that note are not relevant to this decision.

20. The tribunal accepts that the impact on the claimant’s normal day-to-day activities was as set out in paragraphs 18 and 19 impact statement. These including brushing her hair, putting on make up, doing housework, preparing food, carrying her 2 year old grandson, driving, opening door and having a shower. Taken altogether those impacts was substantial at the time while she was still employed

21. At paragraph 24 of her impact statement the claimant states that the heavy pain had subsided by the time of her dismissal. That is consistent with what is contained in the notes of the probationary review meeting on 20 March 2020 (page 116) which led to the claimant’s dismissal. The claimant is noted as saying ‘my arm is much better now and I’m working normally, not a long term thing. Its been two months since the doctor said that to me and I think she was right’The claimant now says she did not say that. The tribunal finds it more likely than not that she did and that it reflected the position at that date.

22. When the claimant challenged the notes of the meeting on 24 April 2020 (page 130) she raised two specific matters but did not challenge the note stating that her arm was better she now. She relies on the sentence below in that email where she stated that “there may be other items” but she never did raise any others. The tribunal accepts that the notes were correct as far as the claimant was [NAME] save for the two matters that she did raise. This is particularly so as one of the grounds of appeal was that she had suffered an injury to her right arm earlier in the year. So the injury was a relevant point in the appeal. The claimant did not raise the issue of the notes being incorrect at the appeal hearing either. It is also consistent with what the claimant said at paragraph 34 of the ET1 namely that ‘the pain in my arm went by March. I am still under physio treatment”. She was continuing her caring responsibilities but she did have difficulty she stated cutting vegetables.

Relevant law

23. Section 6 of the Equality Act 2010 provides:

Disability (1) A person ([NAME]) has a disability if— (a) [NAME] has a physical or mental impairment, and

Case No: 3307564/2020 10.8 Reasons – rule 62(3)

March 2017

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

24. Schedule 1 Part 1 provides: Long term (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, or (c) it is likely to last for the rest of the life of the [NAME].

25. Paragraph C4 of the Guidance on the definition of disability (2011) provides:

‘In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant to assessing this likelihood…’

Conclusions

26. The burden is on the claimant to show that she satisfied the definition of disabled. There is no dispute that the claimant had suffered and arm and should injury in or about December 2019.

27. It is also accepted that the injury had an adverse effect on the claimant’s ability to lift and carry everyday objects, cut vegetables, sit in an office chair and work with her left hand for the period to March 2020.

28. The tribunal must then consider is whether that effect was ‘substantial’ The Tribunal accepts that for the period January to March 2020 the claimant was suffering substantial adverse effects from her arm injury. By the dismissal meeting on 20 March 2020 the pain had gone although the claimant continued physiotherapy. This was only a 3 month period. The condition had not lasted 12 months.

29. As has been made clear throughout the issue of whether the condition was ‘likely to last 12 months’ must be assessed at the date of the act complained of the. The tribunal cannot find that to be the case on the evidence before it. It must make the decision from the facts and circumstances existing at the relevant time. [NAME] report relied upon from August 2021 is not conclusive enough to assist the Tribunal and it cannot be satisfied that [NAME] was considering the likely length of time by reference to the dates of the act complained of. The evidence is that in March 2020 the pain had gone or significantly diminished such as to enable the claimant to state that at the meeting on 20 March and repeat that in her ET1 claim form. On the evidence available at the time the condition was not likely to last 12 months.

Case No: 3307564/2020 10.8 Reasons – rule 62(3)

March 2017

30. It follows that the claimant did not satisfy the definition of disabled at the relevant time and her claims of disability discrimination must be and are dismissed

_____________________________

Employment Judge Laidler

Date: 31 October 2022

REASONS SENT TO THE PARTIES ON

3 November 2022

FOR THE TRIBUNAL OFFICE

Case number: 3307564/2020

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondent: [redacted]

There are no grounds on which to strike out the response and the claimant’s application is dismissed.

REASONS

1. At the 11 July 2025 case management hearing the claimant made an application to strike out the response. The application had been sent to the tribunal and the respondent at 03:24 on the morning of the hearing. As the case had only been listed to make case management directions for the remission from the Court of Appeal and the respondent had only just received the application it was not dealt with on that occasion.

2. A direction was made that the claimant advise within 14 days whether she wished to pursue the application. She did not do so.

3. On 21 August 2025 the claimant advised that she had been in a car accident and was ‘unable to handle my case as usual’. She asked for more time to meet tribunal deadlines. She was given until the 1 September 2025 to advise her position on the strike out application.

Case number: 3307564/2020

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4. On 1 September 2025 the claimant wrote again ‘for more time and privacy’. She wished to keep her medical information private and no fit note was sent as she did not want it shared with the respondent. The judge does not recall seeing any fit note(s).

5. On 29 October 2025, the claimant wrote that health and technical problems had prevented her from complying with the direction. She resubmitted her strike out application.

6. The claimant’s application was initially contained in an email of the 11 July 2025 and has been supplemented by the following:

a. 29 October 2025 – 18 pages b. 31 October 2025 c. 3 November 2025 – resending strike out application and the respondents submissions for the 6 May 2022 Preliminary Hearing. d. 14 November 2025 – a postponement request due to a clash with family court proceedings. e. 16 November 2025

f. 17 November 2025 – Family Court order clash with the tribunal proceedings and the ‘tribunal has failed to take any effective steps to prevent this’ and this is ‘retaliation’ because of the strike out application

g. 3 December 2025 – 10 pages

7. The employment judges are reliant on the [NAME] to forward correspondence to them that requires judicial attention. In view of the number of claims received in the employment tribunal system and the resultant backlog in the listing of cases it is not always possible for correspondence to be referred to the relevant judge upon receipt of it. The parties’ correspondence since the judge’s direction of the 8 December 2025 was consequently seen by the judge on the 27 January 2026. This included:

Case number: 3307564/2020

3 a. Correspondence from the claimant of the 3, 8, and 15 December 2025, and 12 and 19 January 2026. b. Correspondence from the respondent of the 15 December 2025 attaching their submissions in opposition to the strike out application and 13 and 19 January 2026.

8. It may be that further correspondence has been received by the parties which has not yet been seen by the judge.

9. In their letter of 6 November 2025 the [NAME] objected to the strike out application being dealt with stating that the claimant had not complied with the tribunal orders in relation to it. If it was to be considered it should be dealt with at the listed hearing on 11/12 December.

10. The judge granted the claimant’s application to postpone the 11 & 12 December 2025 hearing and gave further directions on 8 December for the respondent to file its submissions in relation to the strike out application which would then be dealt with on the papers without a hearing. This has always been the claimant’s stated preference.

11. The strike out application is the claimant states based on ‘a persistent pattern of non-engagement, procedural abuse, cumulative prejudice and 6 new grounds that have arisen since the matter was remitted by the Court of Appeal' (strike out application 29 October 2025)

12. The first part of the strike out application lists why the claimant does not agree with the case management decision made on the last occasion when the tribunal determined it was not appropriate to hear the strike out application at that hearing. They are not reasons to now strike out the respondent.

13. The details that follow are taken from the application dated 29 October 2025.

September 2022 decision of another Employment Tribunal

14. The hearing before this Employment Judge was on 6 May 2022 and the judgment sent to the parties on 30 June 2022. Clearly the September 2022 decision of another tribunal had not yet been made but even if it had been it

Case number: 3307564/2020

4 would not be binding on this tribunal. That is a judicial decision and not an action of the respondent that would justify strike out

Six new grounds for strike out

Misrepresentation of instruction date 15. The Claimant alleges that the [NAME] for the respondent has given an incorrect date on which they were instructed stating March 2025 rather than January 2025. If that were the case, which is not accepted, it would not be a ground for strike out of the response

Breach of tribunal directions of 14 January 2025 16. That is the date the Notice of Hearing was sent out for the 4 April 2025 case management hearing that this judge had directed on the remission from the Court of Appeal. There were no directions made in it. The claimant requested a postponement of the 4 April 2025 hearing, and it was granted.

Misleading the ET and non – engagement 17. This repeats the allegation about the date the [NAME] was instructed and suggests that they had her strike out application from November 2024 when it was sent to the Court of Appeal. What has occurred in the Court of Appeal procedurally is not a matter for this tribunal but the Court of Appeal. This tribunal is unaware of any applications made by the claimant to that court and even if another strike out application was made to it the fact remains that the respondent and this tribunal did not have the application to strike out these proceedings until the hearing on the 11 July 2025.

Procedural unfairness and double standard in admitting evidence 18. The Claimant alleges that the tribunal allowed the respondent to object to her request to record the last case management hearing and failed to deal with the strike out application and compares this to the judge stating that she would not consider the supplemental impact statement filed before the May 2022 hearing.

19. This is a judicial decision and not a ground for strike out of the Response. As the judge has made clear this is a remission to the same judge and as there has been no order of the Court of Appeal to the contrary should be a

Case number: 3307564/2020

5 consideration of the points that the Court of Appeal has found were not considered but on the evidence that was before the tribunal in May 2022. That is why the supplemental bundle has not been allowed.

Misrepresentation of the scope of the favourable judgment and fabrication of dismissal minutes 20. As already stated above the ‘favourable judgment’ (that of another Employment Tribunal) is not binding on this tribunal.

21. The dismissal minutes are not relevant to the remitted issue. That is a judicial decision and not a ground for strike out of the response.

Misleading the Court of Appeal and Abuse of Process

22. The claimant alleges that the respondent has ‘misled the Employment Tribunal but has also made false statements to the Court of Appeal claiming that the non-disclosure issue was ‘finished’ at the ET’. The claimant says this was ‘demonstrably untrue’. This is a matter for the Court of Appeal and not this tribunal and not a ground to strike out the response’.

Pattern of delay and procedural manipulation 23. The claimant states that the respondent had notice of the strike out application since 28 November 2024 when she submitted it as part of the Court of Appeal proceedings. She states that the listing of the July 2025 hearing as a case management hearing was a ‘significant procedural error and a deliberate delaying tactic’. The July 2025 hearing was listed as a case management hearing on the direction of the judge having seen the decision of the Court of Appeal. The judge was not aware of the strike out application until the morning of the hearing.

24. The claimant asserts she has ‘experienced similar procedural tactics and delays in other legal matters’. This tribunal is only responsible for listing the cases that appear before the Employment Tribunal and not those in any other jurisdiction. If there have been conflicting dates in different cases the claimant is involved in that is not a reason to strike out the response.

Pattern of non-compliance and procedural abuse across proceedings (claimant’s point 6a)

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25. The Claimant refers to ‘opposing teams in my Employment Tribunal and family court matters’ repeatedly breaching court orders showing a ‘parallel pattern of non-compliance and procedural abuse’. This tribunal has no jurisdiction over litigation in other courts.

Ongoing pattern of non – compliance and non – disclosure (claimant’s point 6b) 26. As was stated at the July 2025 case management hearing on the remission there is no need for further disclosure as the judge will be considering the remitted matters on the evidence before her in May 2022.

Ongoing non-disclosure and deliberate obstruction (claimant’s point 6c)

27. This repeats the point about disclosure. The claimant refers to an unless order of the 5 December 2022 being sent to the wrong address of her then legal representative and then again in 2023 ‘suggesting a deliberate attempt to prevent me receiving critical documents and to obstruct my ability to appeal’. The sending out of correspondence is an administrative matter and the [NAME] is overburdened with the backlog of cases. It is not within the control of the respondent or a ground to strike out the Response.

Exclusion of new evidence and failure to address remitted issues (claimant’s point 7)

28. This point has been covered above. It is a judicial decision and not a ground to strike out the response.

Possible influence of respondent in withholding written reasons (claimant’s point 8)

29. The Claimant alleges that the tribunal ‘withheld the written reasons from the 6 May 2022 hearing until 3 November 2022 – a critical time as other acts of coordinated retaliation were taking place and I was facing multiple legal pressures…’. The judge addressed in the written reasons why there was delay and that was because the [NAME] did not forward to her the request for written reasons. This was nothing to do with the respondent and is not a ground for strike out of the response.

Case number: 3307564/2020

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Procedural bias, non-engagement by respondent and judicial abdication (claimant point 9)

30. The claimant refers to the findings of another employment tribunal which as already stated are not binding on this tribunal and occurred after its May 2022 hearing.

31. The Claimant also alleges that the Employment Appeal Tribunal and Court of Appeal have failed to engage with that judgment. That is a matter for those courts and not this tribunal. It is not a reason to strike out the response.

Procedural abuse and retaliation (claimant point 10)

32. The claimant states that since the July 2025 hearing she has suffered a serious car accident two weeks later, ‘the escalation of my family case and ongoing procedural abuse in both the ET and family court’. The claimant believes that the ‘timing and pattern of these events are not coincidental’ suggesting they all point to ‘a coordinated effort to silence me and prevent me from pursuing my matters’. The claimant also refers to an ‘interim charging order’ and notifying the tribunal immediately on receiving it but that she received no response. If that is the case that is again an administrative matter and not a reason to strike out the respondent. As already stated neither the employment tribunal or the respondent have any control over the listing of cases in other courts.

Blatant misrepresentation and judicial abdication (claimant point 11)

33. The claimant refers to her [NAME]'s questionnaire. This was dealt with in the tribunal’s written reasons sent to the parties on the 31 October 2022. The claimant has forwarded a copy of the submissions made on behalf of the respondent at the May 2022 hearing and states that ‘the judge’s acceptance of this argument and the EAT’s repetition of it, is a clear abdication of judicial responsibility and demonstrates a pattern of collusion and procedural abuse’.

34. [ADDRESS] of Appeal has now overturned the EAT’s decision and remitted the matter to this judge. It has set out clearly the remitted matters. These are not grounds to strike out the response.

December 2025 Hearing request (claimant point 12) 35. This has now been postponed

Case number: 3307564/2020

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Failure to consider key evidence (claimant point 13)

36. The claimant refers to her supplemental impact statement which she states should have been allowed at the May 2022 hearing. The tribunal’s reasons for disallowing it were contained in the written reasons sent to the parties on the 31 October 2022. The EAT stated at paragraph 15 of its decision that ‘I do not think that the decision is open to legal challenge’. Nothing is mentioned about it in the Court of Appeal orders. The claimant alleges that there is a ‘pattern of higher courts and tribunals failing to engage with the substance of my ground and simply deferring to the ET judge’s original flawed decision’. [ADDRESS] of Appeal has overturned the EAT decision and remitted the matter. These are not grounds to strike out the response.

[APPELLANT] points 14 and 15 – the receipt by the respondent of the strike out application and alleged hearing clashes and cumulative impact. 37. These have already been dealt with.

38. EAT Matters (claimant point 16)

a) judicial responsibility for EAT matters

The claimant asserts that this tribunal ‘has a duty to take responsibility for the procedural errors, non-disclosure and unfairness that have occurred in these proceedings’ and suggests that it is in some way responsible for the decision of the EAT. The claimant did not agree with that decision, and she appealed as she was entitled to do. This does not give rise to a ground to strike out the response.

b) False narrative and procedural failure in the EAT judgment. These are matters for the EAT and subsequently the Court of Appeal and not grounds for striking out the response

c) procedural manipulation and narrative control in Court orders and EAT judgment The claimant takes issue with the wording of the Court of Appeal’s order. That is a matter for the Court of Appeal and not this tribunal. It is not a ground to strike out the response.

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d) circular reasoning and judicial abdication in exclusion of key evidence This refers again to the Supplemental Impact statement which has been addressed above. It is not a reason to strike out the response.

Exclusion of key evidence and procedural unfairness/judicial and professional failures (claimant point 17)

39. This refers again to the Supplemental Impact statement which has been addressed above. It is not a reason to strike out the response.

40. Unlawful and coordinated procedural abuse (claimant’s point 17a))

The claimant suggests that the listing of a case management hearing to discuss the remission was ‘the result of a coordinated effort by the Respondent, EAT and Court of Appeal to ensure that my Supplemental Impact Statement is never allowed or considered, regardless of the merits’. The EAT and Court of Appeal are separate branches of the judicial system. The decision to list a case management hearing was made by the employment tribunal and not the other courts. It was considered a necessary step to clarify the issues being remitted and list the remitted hearing. It is not a reason to strike out the response.

41. Contradictory and unfair reasoning in the EAT sift decision (claimant’s point 17b))

That is not a matter for this tribunal and not a reason to strike out the response.

42. Failure to engage with evidence and judicial abdication in the EAT. (claimant’s point 17c)

43. Failure to engage with substantive legal errors (claimant’s point 17d)

Again, this is referring to hearings before the EAT and is not a matter for this tribunal and not a reason to strike out the response.

Case number: 3307564/2020

10 44. Public interest and systemic cover up (claimant’s point 17e)

The claimant asserts a ‘pattern of procedural abuse, document manipulation, and institutional betrayal’. The case has been through two appeals and the claimant succeeded in the Court of Appeal. The remission remains to be dealt with. That is not a reason to strike out the response.

45. Possible ex parte communications and procedural unfairness (claimant’s point 18)

The claimant states that she has ‘real concerns that the Respondent has engaged in ex parte communications with the Court of Appeal or at the very least has influenced the court’s handling of my case through selective engagement’. She asks this tribunal to ‘investigate’ this possibility. That is not the role of the Employment Tribunal and not a ground to strike out the response

46. Failure of legal representation and ongoing non – disclosure (claimant’s paragraph 19)

The claimant refers to a letter to the Court of Appeal of 24 September 2024 to which she attached seven documents including emails with her counsel highlighting non disclosure of documents from the DSAR. That is not a matter for this tribunal and not a reason to strike out the response.

47. Falsified dismissal notes, HR knowledge and disability discrimination (claimant’s paragraph 20)

The claimant refers to an email from the respondent’s HR of the 10 March 2020 as evidence they were aware of her disability. This tribunal is not currently dealing with the issue of knowledge but whether the claimant had a disability within the meaning of the Equality Act 2010

48. The claimant’s letter to [NAME] of the 13 November 2025

In this letter the claimant sets out further grounds for strike out of the response. These include: a. The delay in the filing of the ET3 in September 2020 – this was addressed at the time and an extension of time granted

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11 b. The failure by the respondent to state its position on disability until 21 December 2021 – the hearing on the 6 May 2022 was to deal with the issue of disability. That the respondent did not states its position until 21 December 2021 is not a reason to now strike out the response c. That the tribunal suddenly listed a hearing on 29 December 2021 for the 7 January 2022 – this was not sudden. The hearing for the 7 January 2022 was listed at a hearing on the 13 July 2021 to determine the issue of disability. It appears the notice of 29 December 2021 was to advise the parties that the hearing would be on the [NAME] and they should not [APPELLANT] a hearing centre. d. The tribunal delay in providing written reasons – this has already been addressed. e. The timing and release of those reasons was to cause a clash with other litigation.

49. None of the above matters are reasons to now strike out the response.

The Relevant Rules

50. The Employment Tribunal Rules of Procedure 2024 Rule 38

(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds–

(a) That it is scandalous or vexatious or has no reasonable prospect of success: (b) That the manner in which the proceedings have been conducted on or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious (c) For non-compliance with any of these Rules or with an order of the Tribunal (d) That it has not been actively pursued (e) That the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out)

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12 51. Tribunal conclusions

The claimant, as a litigant in person, does not state which particular provision she relies upon. From a reading of her application and correspondence it is assumed that the relies on (b) above. Whichever ground is relied upon the application is refused and the response is not struck out as there are no grounds to do so.

52. The claimant relies on matters that are not within the power or control of the respondent, including administrative delays, actions and listing of other courts in different jurisdictions and matters on which decisions have already made in this tribunal or the appeal courts.

53. The claimant states that she is dealing with other litigation in the family court. That is a matter for her and not something that either this tribunal or the respondent has any control over or involvement in. It may be that as a result the claimant has several hearings to deal with but that is not the fault of the respondent.

54. The claimant has exercised her right to appeal to the Employment Appeal Tribunal and then to the Court of Appeal. What has transpired in those courts is separate to the Employment Tribunal and neither the tribunal nor the respondent have any control over those courts. Any issues the claimant has with those decisions would need to be taken up with the court that made them. What has transpired in other courts during the appeal process is not a reason to strike out the response.

55. The case will proceed. At the last case management hearing on 11 July 2025 the matters remitted by the Court of Appeal were discussed. The remission hearing was to be listed for 2 days and it was for dates in December. That hearing had to be postponed. It has now been relisted for the 12 and 13 May 2026 on dates to avoid having been provided by the parties. The tribunal will consider the remitted issues on submissions from the parties and taking account of the documents that it had at the original hearing in May 2022. The respondent is to ensure that the original bundle is sent electronically to the tribunal and copied to the claimant at least 7 days before the hearing.

Approved by:

Employment Judge Laidler Date: 30 January 2026

Case number: 3307564/2020

13 Sent to the parties on: 16 February 2026

For the Tribunal:

Case Number: 3307564/2020.

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EMPLOYMENT TRIBUNALS

Claimant

Respondent

[NAME] v [RESPONDENT] at: Bury St Edmunds ([NAME])

On: 12 May 2026

Before: Employment Judge Laidler

Appearances For the Claimant: [redacted]

For the Respondent: [redacted]

JUDGMENT on REMISSION

1. The Claimant was not disabled at the material time as original found in the decision of this Tribunal of the 6 May 2022.

2. There is no evidence before this Tribunal from which it could conclude that if the effect of the claimant’s impairment had ceased to have a substantial adverse effect it is to be treated as continuing to have that effect if that effect is likely to recur. (Sch 1 Equality Act 2010, Part 1, section 2(2)

3. There is no evidence before this Tribunal from which it could conclude that but for the measures taken by the Claimant to treat or correct her impairment it would have a substantial adverse effect. (Sch 1, Equality Act 2010, Part 1, section 5)

REASONS

1. This was the hearing of the matters remitted by the Court of Appeal by its order of 5 December 2024, following the rejection of the Claimant’s Appeal to the EAT in its decision of the 22 February 2024.

2. Leave to Appeal to the Court of Appeal was granted on 12 August 2024 on Ground 1 of the Claimant’s Grounds of Appeal dated 15 March 2024 (while refusing permission on Ground 2). [ADDRESS] of Appeal recorded that its Order of 5 December 2024 was made by consent. It stated:

Case Number: 3307564/2020.

2 2.1. Ground 1 of the Claimant’s Appeal is allowed, namely, that ‘the EAT erred in failing to remit the question of the Claimant’s disability status to an ET, having found that the ET erred in failing to determine the issue of recurrence and whether, but for the measures taken by the Claimant, her impairment would continue to be substantial for 12 months”. 2.2. The EAT Judgment is set aside in respect of the decision on the original Ground 1 of the Appeal to the EAT that “the Employment Judge should have considered an alternative basis for finding that the effect of the impairment was long term, namely that if the relevant effect had ceased, it was to be treated as continuing if likely to recur. 2.3. The EAT Judgment is set aside in respect of the decision on the original Ground 2 of the Appeal to the EAT, that “the Employment Judge failed to consider whether, but for the measures taken by Mrs [NAME] the impairment would have continued to be substantial”.

3. It is noted that this was an agreed Order between the parties and not a determination by the Court of Appeal.

4. A Case Management Hearing was held on 11 July 2025 before this tribunal when it was made clear that the Remitted Hearing would take place having regard to the documents that were before the Judge on the last occasion in 2022. No new documents would be permitted as they were not relevant to the issue. What was relevant was what the Judge had when the original decision was made. At the time of this Hearing, no Order from any [ADDRESS] had been received by the Employment Tribunal to change that position.

5. The Claimant [APPELLANT] this Hearing. A postponement request from the claimant in March had been refused and one was received on the 8 May 2026 from Solicitors now instructed by her and that application was also refused. The Tribunal's reasons were sent to the parties in a letter of the 11 May 2026. The Hearing proceeded in the [APPELLANT] absence to determine the remission. As stated, when refusing the postponement request it was in accordance with the overriding objective to proceed with this matter. It started in 2020 and the original decision was made in 2022. A determination needed to be made.

6. Prior to the hearing before this tribunal in May 2022 there had been four preliminary hearings. There have been many occasions when listed hearings did not proceed. In a summary sent to the parties after a hearing on 7 January 2022 [APPELLANT] J [APPELLANT] recorded: The claimant was due to give evidence today on the issue of disability and had submitted an unsigned statement which addressed that issue (and various others) as well as assorted paperwork. However, she [APPELLANT]. [NAME] [who appeared for her] explained that she had informed him at 9:20 am today – for the first time – that she could not participate due to incapacitating jaw and ear pain which (he told me) was somehow related to her alleged disability. She apparently had an appointment with the GP at 3:10 pm which she

Case Number: 3307564/2020.

3 had made this morning, in order to receive treatment. Mr [NAME] could not provide me with anything to prove the fact of the appointment or that medical issue, or anything to substantiate the assertion that as a result of jaw and ear pain the claimant could not participate today. This was unsatisfactory. It led to tribunal time and resource being wasted.

7. At a subsequent hearing before E J Wyeth on 21 March 2022, he refused to strike out the claims but made an unless order stating:

“The claimant has given various reasons by way of explanation for her failings in a witness statement before me today. I indicated that I was sceptical that those reasons were sufficient to explain why she has been unable to take the steps necessary to progress her claim to date. I expressed profound concern over the significant waste of judicial time and resource that contributes to the delay of other equally just cases…’

8. The claimant was referred to the [NAME] when her request of 4 March 2026 for a postponement was refused. No medical evidence was then sent. When [APPELLANT] wrote on the claimant’s behalf on the 8 May 2026 all that was referred to was a Fit Note for the period 1 - 30 April 2026.

9. The Tribunal had written submissions from the [NAME], a bundle of legal authorities and the original bundle of 142 pages.

Relevant Law

Equality Act 2010, Schedule 1, Part 1

10. Schedule 1, Part 1 of the Equality Act 2010 provides,

Long term effects

2(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, or (c) It is likely to last for the rest of the life of the [NAME].

(2). If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

Case Number: 3307564/2020.

4

Effect of medical treatment

5(1). An impairment is to be treated as having a substantial adverse effect on the ability of the person [NAME] to carry out normal day to day activities if- (a) Measures are being taken to treat or correct it, and (b) But for that, it would be likely to have that effect.

5(2). “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

Guidance on the definition of disability (2011)

11. Effect of treatment

11.1. B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs. (See also paragraphs B7 and B16.) 11.2. B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1. 11.3. B14. For example, if a person with a hearing impairment wears a hearing aid the question as to whether his or her impairment has a

Case Number: 3307564/2020.

5 substantial adverse effect is to be decided by reference to what the hearing level would be without the hearing aid. Similarly, in the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.

12. Extracts from section C – meaning of ‘long term’ 12.1. C1. The Act states that, for the purpose of deciding whether a person is disabled, a long-term effect of an impairment is one:  Which has lasted at least 12 months, or  Where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months, or which is likely to last for the rest of the life of the [NAME] (Sch1, Para2). 12.2. Special provisions apply when determining whether the effects of an impairment that has fluctuating or recurring effects are long term, (see paragraphs C5 to C11).

13. Meaning of ‘likely’ 13.1. C3. The meaning of ‘likely’ is relevant when determining:  Whether an impairment has a long term effect, (Sch 1, Para 2(1), see also paragraph C1),  Whether an impairment has a recurring effect, (Sch 1, Para 2(2), see also paragraphs C5 to C11),  Whether adverse effects of a progressive condition will become substantial, (Sch 1, Para 8, see also paragraphs B18 to B23), or  How an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour, (Sch 1, Para 5(1), see also paragraphs B7 to B17). In these contexts, ‘likely’ should be interpreted as meaning that it could well happen. 13.2. C4. In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an

Case Number: 3307564/2020.

6 individual, and any relevant factors specific to this individual (for example, general state of health or age).

14. Recurring or fluctuating effects 14.1. C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely).) 14.2. C6. For example, a [NAME] may experience substantial adverse effects for a few weeks after the first occurrence and then have a period of remission. See also example at paragraph B11. If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. Other impairments with effects which can recur beyond 12 months, or where effects can be sporadic, include Manières Disease and epilepsy as well as mental health conditions such as schizophrenia, bipolar affective disorder, and certain types of depression, though this is not an exhaustive list. Some impairments with recurring or fluctuating effects may be less obvious in their impact on the [NAME] than is the case with other impairments where the effects are more constant.

15. Likelihood of recurrence 15.1. C9. Likelihood of recurrence should be considered taking all the circumstances of the case into account. This should include what the person could reasonably be expected to do to prevent the recurrence. For example, the person might reasonably be expected to take action which prevents the impairment from having such effects (for example, avoiding substances to which he or she is allergic). This may be unreasonably difficult with some substances. 15.2. C10. In addition, it is possible that the way in which a person can control or cope with the effects of an impairment may not always be successful. For example, this may be because an avoidance routine is difficult to adhere to, or itself adversely affects the ability to carry out day-to-day activities, or because the person is in an unfamiliar environment. If there is an increased likelihood that the control will break down, it will be more likely that there will be a recurrence. That possibility should be taken into account when assessing the likelihood of a recurrence. (See also paragraphs B7

Case Number: 3307564/2020.

7 to B10 (effects of behaviour), paragraph B11 (environmental effects); paragraphs B12 to B17 (effect of treatment); and paragraphs C3 to C4 (meaning of likely).) 15.3. C11. If medical or other treatment is likely to permanently cure a condition and therefore remove the impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, as is the case with most medication, then the treatment is to be ignored and the effect is to be regarded as likely to recur.

Relevant Authorities

16. In [NAME] v [NAME] of [NAME] [2004] ICR 909 it was made clear that in considering recurrence, it is the ‘substantial adverse effect ‘that the Tribunal must consider. At paragraph 27, the court said,

“The Tribunal must be satisfied that the same effect is likely to recur and that it will again amount to a substantial adverse effect on the applicant's ability to carry out normal day-to-day activities”. In considering whether something is ‘likely to recur” the court stressed that the test is if it is more probable than not that the effect will recur.” 17. In [NAME] v [COMPANY] [2025] EAT 24 at paragraph the Court acknowledge that the legal bar set by the test of ‘likely to recur’ is a low one but that,

“What the tribunal needed to consider, drawing on such evidence as it had, was, in the case of this particular condition, as it [NAME] this particular individual, what the fact that there had been a period of quiescence of some years, meant for the question of whether a substantial adverse impact (in the requisite sense) could well happen in the future.”

18. In [NAME] v The Athelstan Trust [2024] EAT 14 the Court found that there was medical evidence before the Tribunal, “54. In many cases the fact that the adverse effect in issue had ceased over a period of some 23 years would simply be fatal to an assertion of disability for section 6 EqA purposes: this would suggest that the case would fall to be considered as akin to the first example posited by the EAT at paragraph 45 [NAME] (see paragraph 37 above). On the medical evidence before the

Case Number: 3307564/2020.

8 ET in the present proceedings, however, there was a clear basis for the claimant’s assertion that the same illness or impairment (PTSD) had continued throughout, which – although largely leaving him symptom free for many years – was likely to recur if his suppressed memories of the original trauma (the scuba diving accident) were revoked by a triggering event (here, the requirement to wear a face covering); see the extracts from Dr [NAME] report set out at paragraph 20 above. Although the assessment required by section 6 EqA was ultimately for the ET, there was clearly medical evidence before it that linked the original trauma – and adverse effects – suffered by the claimant to what was said to have been the resurgence of his symptoms when faced with a requirement to wear a mask during the Coronavirus pandemic.”

19. In [NAME] v London Borough of Southwark 2002 EWCA Civ 1716 in commenting that no medical evidence had been called to support the claimant’s case and that it was confined to what the claimant surmised would have happened, went on to state,

“13. I would just add this. In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under paragraph 6 of the schedule should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary.” 20. The burden of proof is still on the Claimant.

Conclusions

Likely recurrence

21. The original decision of this Tribunal found that, 21.1. The Claimant sustained an arm injury in December 2019; 21.2. She saw her GP on 13 January 2020 with right arm pain; and 21.3. She was referred for physiotherapy. 22. Paragraph 17 of the original decision stated,

Case Number: 3307564/2020.

9 17. No sick notes were seen by the Tribunal and the Claimant did not give evidence of any period off work in relation to her arm injury. The Claimant relies on a [NAME] dated 26 August 2021, (page 98). It is not really in the form of a Report but answers to questions. The Tribunal did not hear from [NAME]. Of relevance are the answers to questions 4 and 7:

Q4. If you do know the date of diagnosis, has the condition lasted (or is likely to last) for 12 months or more?

The answer given was yes.

Q7. Has this effect(s) lasted for or likely to last more than 12 months?

The answer given was yes. Having not heard from [NAME] the Tribunal cannot be satisfied that she was considering these questions from the viewpoint of what would have been known in the period with which this Tribunal is [NAME], mainly January to March 2020. Clearly by the time she did her Report in August 2021 the condition had lasted for more than 12 months and that was known.

23. Paragraph 18 of the original decision stated, 18. In the same Report, however, at the end is set out what the Claimant reported on 11 March 2020 when she attended her first physiotherapy appointment. She reported ‘difficulties in using her arm with daily living such as cutting vegetables’, also lying on her right side and carrying heavy objects. Her condition was eased by resting, massage and previously prescribed exercises. She did not report any difficulties with sleeping, numbness or specific time of day when pain was at its worse. The Claimant was not on any medication that had been prescribed. She does make reference elsewhere to taking painkillers. On examination the [APPELLANT] had near full pain free active range of movement of her cervical spine, except reporting a stretch sensation on stretch to opposite side flexion. She was pain free active range of movement shoulders, elbows, wrists and thumbs. Muscle strength of right shoulder, elbow and wrist were observed as 5/5 on Oxford Scale. The right grip and opposition of thumb were noted as normal. Thoracic spine rotation was noted as stiff and was reduced bilateral (1/2) range of movement.

24. There was no relevant evidence on the issue of recurrence. In answer to the question [NAME] ‘did not know’. This was clearly not evidence from which the Tribunal could or can conclude that the condition was likely to recur.

Case Number: 3307564/2020.

10 25. It is not for the Tribunal to guess or surmise that a condition might recur without the relevant evidence before it.

26. It is the case that the Guidance refers to specific conditions that can recur but the Claimant’s is not amongst those. Deduced effects 27. In the original decision the tribunal accepted that the claimant’s condition was still having a substantial adverse effect on her at March 2020 but that it did not come within the definition of ‘long term’. In the particulars attached to her ET1 the claimant stated that the pain in her arm went by March but she was still having physiotherapy treatment (para 34). The question is whether after March 2020 the impairment is to be treated as having a substantial adverse effect if, but for the physiotherapy treatment, the impairment is likely to have that effect, ie substantial and adverse. The authorities make it clear that what would need to be established by the Claimant is that but for the measures the impairment would have continued to be substantial.

28. There was no evidence before the Tribunal on which it could come to that conclusion.

29. The Claimant’s impact statement, paragraph 25, page 110 of the original bundle states,

“25. If I did not have any treatment for my injury (which was actually starting in November / December the difference on how I could go about my day to day life would have been huge. The intense pain would have lasted longer, I would not have been able to sleep, I would not have been able to do my job, my arm and hand would have even less movement and I would have been unable to do many more things than before. Also, not being able to get out of bed or speak to anyone, losing my appetite, having muddled irrational thinking, lacking ability to concentrate and constantly feeling irritable and despair.” 30. [NAME], however, did not deal with this issue and there is no further medical evidence. The Claimant has just set out what she thinks might have happened which is not the approach the authorities require. ([APPELLANT])

31. The Claimant has therefore failed to establish that the condition was likely to recur or that but for the measures taken by her it would have continued to have a substantial adverse effect.

32. The tribunal’s conclusion remains that the Claimant did not at the material time satisfy the statutory definition of disabled.

Case Number: 3307564/2020.

11

Approved by:

Employment Judge Laidler

Date: 21 May 2026

Sent to the parties on: 27 May 2026

For the Tribunal Office.

Public access to Employment Tribunal decisions

All judgments (apart from judgments under Rule 51) and any full 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 claimants and respondents.

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 is likely to be payable in most but not all circumstances. 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: 3307564/2020

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

[APPELLANT] v (1) [RESPONDENT]; (2) [NAME] at: Bury St Edmunds

On: 6 May 2022

Before: Employment Judge Laidler

Appearances For the Claimants:

[redacted] For the Respondents: [redacted]

JUDGMENT on PRELIMINARY HEARING

The Claimant was not disabled within the meaning of Section 6 of the Equality Act 2010 at the dates of the acts complained of and her claim of disability discrimination is dismissed.

_____________________________

Employment Judge Laidler

Date: 20 June 2022

Sent to the parties on: 30/6/2022

[NAME]

For the Tribunal Office Note 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.

Case No : 3307564/2020

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

(2) Ms [APPELLANT] [NAME] at: Bury St Edmunds (by [NAME])

On: 6 May 2022

Before: Employment Judge Laidler (sitting alone)

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

JUDGMENT

The claims against the second respondent are dismissed on withdrawal by the claimant.

__________________________ Employment Judge Laidler Date: 19 August 2022 Sent to the parties on: ………………………..……….

For the Tribunal:

………………………….……..

Case number: 3307564/2020 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Employment Judge Laidler (on the papers)

JUDGMENT ON RECONSIDERATION

The claimant’s application for reconsideration of the 17 November 2022 is refused

REASONS

1. The hearing to determine the issue of disability was on the 6 May 2022. The decision was given orally to the parties that day and judgment sent on the 20 June 2022. The tribunal found that the claimant was not disabled at the time of the acts complained of (January – 20 March 2020) and the claims of disability discrimination were dismissed. A request for written reasons was made by the claimant but not seen by the judge until 11 October 2022. Written reasons were sent to the parties on the 3 November 2022.

2. The tribunal found that the claimant did suffer from an arm and shoulder injury in December 2019 which had an adverse effect on her ability to carry out day to day activities. It further accepted that the effect was substantial in the relevant period of January to March 2020. That was only a 3 month period and the effects had not lasted 12 months.

3. It was made clear throughout the hearing and again in the reasons that the issue of whether the condition was ‘likely to last 12 months’ was to be assessed at the date of the act(s) complained of. Paragraph C4 of the Guidance on the definition of disability is set out at paragraph 25 of the reasons. The tribunal could not find that

Case number: 3307564/2020 2

from the evidence before it.

4. As a preliminary matter the tribunal had to consider a Supplemental Impact statement served by the claimant the day before the hearing. It was similar to the one served with the claimant’s reconsideration application save that a few matters have been added. There having been 4 previous case management hearings at which orders were made and the claim having been issued in 2020 the tribunal found it would not be in accordance with the overriding objective for the claimant to be allowed to rely on this late statement. There was a document attached to it from a [NAME] dated the 3 May 2022 and for the same reasons and in view of the above section of the Guidance the tribunal indicated it would not be taken into account.

5. The relevant provisions of the Employment Tribunal Rules 2013

RECONSIDERATION OF JUDGMENTS Principles 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.

Case number: 3307564/2020 3

Conclusions

6. The claimant in her application takes issue will all aspects of the tribunal’s decision including the exercise of its case management powers at the outset of the hearing. They are not subject to the Rules on reconsideration.

7. The claimant challenges the tribunals findings on the evidence it heard. They were its findings and the fact the claimant does not agree with what the tribunal found is not open to challenge by way of a reconsideration application.

8. The claimant produces text messages for physiotherapy appointments. They are not to the point as there was no dispute and the tribunal accepted that the claimant did have an injury which impacted on her.

9. At paragraph 18 the claimant states ‘it is undoubtedly persuasive that the claimant continues to be impacted 2.5 years later’. That statement is contrary to the Guidance and the case law which provides that tribunal must consider the circumstances at the time of the alleged discrimination and ‘anything which occurs after that time will not be relevant to assessing this likelihood’.

10. The claimant also places reliance on the respondent not producing evidence at the preliminary hearing. It was not for them to do so. The burden of showing that she satisfied the statutory definition was on the claimant.

11. It is not in the interests of justice that the judgment be reconsidered. There is no reasonable prospect of the original decision being varied or revoked and the application is refused.

Employment Judge Laidler

Date: 30 November 2022

SENT TO THE PARTIES ON

1 December 2022

FOR THE TRIBUNAL OFFICE