Disability Discrimination Claim Struck Out by Employment Tribunal

OUTCOME: Struck Out

Case No: 2407366/2024

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Manchester Employment Tribunal

On: 4 December 2025

Before: Employment Judge Dunlop

Representation

Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties on 27 January 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

Introduction

1. This is the respondent’s application to strike out the claimant’s case of disability discrimination on the basis that it has no reasonable prospects of success, or, alternatively, for a deposit order on the basis that the case has little reasonable prospect of success. The application is made under Rule 38 Employment Tribunal Rules of Procedure 2024.

Factual background

2. This was a summary hearing at which not evidence was taken. The facts set out below are intended to be either (a) uncontroversial or (b) explanatory of the claimant’s case taken at its highest. They are not findings of fact and are do not bind the parties or any future Tribunal.

3. The claimant worked as a probabtion officer. She started employment in 2018 and, in early 2024 had approached her employer saying that she was seeking medical support because she believed she had ADHD. This diagnosis was subsequently confirmed, albeit after Miss [APPELLANT]’s employment

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ended. [NAME] now accepts that she is disabled by reason of ADHD and I have taken that concession fully into account.

4. In March 2024 the claimant submitted a conflict of interest form in which she disclosed a connection with a [APPELLANT] who had been arrested and charged with the offence of causing actual bodily harm. I will refer to that [APPELLANT] as “A”. She said that the connection was that they were “close friends” and that she was also friends with his family.

5. In May 2024 the respondent received information that Miss [APPELLANT] was actually in a personal relationship with [APPELLANT]. This was investigated.

6. Miss [APPELLANT] says that she met A on a night out in early March 2024, before his arrest, and that she had been drinking with him and had then had sex with him. She then continued to be in contact with him over the next ten days or so, prior to his arrest. She says that she completed the COI form promptly accurately as she would not have described them as being “in a relationship” given the short period of time they had known each other. She says that there was a discussion about whether she could visit [NAME] in prison in a personal capacity, but she was never given clarity on this. She did visit him in prison.

7. She told me today (although this is not in the claim form) that [NAME] quickly began to harass her and that she had to take steps to protect herself and her child, for example by changing her mobile number and obtaining a non- molestation order.

8. The respondent’s investigation concluded that the claimant was in an inappropriate relationship with [APPELLANT] as defined by the respondent’s conduct and discipline policy, and she was therefore dismissed for gross misconduct. The fact that she had visited him was one of the relevant factors in the respondent reaching this conclusion.

Procedural background

9. The claimant submitted a claim form on 5 December 2024, raising complaints of unfair dismissal and discrimination on the grounds of disability. The claim set out a factual narrative, and also gave details of the claimant’s disability, but did not specify the type of discrimination, within the Equality Act 2010, that the claimant was alleging had taken place.

10. There was a case management hearing before Employment Judge Buzzard on 25 May 2025. It is recorded that the claimant told Judge Buzzard that she felt she had been unable to fill in the conflict of interest form correctly due to her ADHD, in that she was “not aware I needed to include that I had intimacy with him on one occasion.”

11. The case management record also records that the claimant’s position as to the ‘type’ of disability discrimination claim she was bringing was that it was a reasonable adjustments claim. The Judge recorded:

A claim of discrimination by failure to make reasonable adjustments would require the claimant to establish the following:

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i) That the respondent had a provision, criterion or practice ("PCP") that was applied to her; ii) That the PCP applied had caused the claimant a substantial disadvantage that a [APPELLANT] without ADHD would not encounter. iii) That the respondent was either aware that the PCP caused the claimant that disadvantage or should reasonably have been aware; iv) that there was one or more reasonable adjustments that the respondent could have made that would have reduced or eliminated that disadvantage which it failed to make; and v) either that the claimant started ACAS conciliation within 3 months of any alleged failure to adjust the PCP or if not that it would be just and equitable to extend that three months to allow the claim to proceed.

12. There was “significant discussion” between the claimant and the Employment Judge to try to identify the relevant PCP and disadvantage caused to the claimant in the context of the events leading up to her dismissal.

13. [NAME] recorded that there was a difficulty in identifying a “legally viable” PCP. His solution was to give the claimant time to go away and try to identify a PCP, perhaps by taking legal advice.

14. Miss [APPELLANT] tried to do this and there have been several documents sent to the Tribunal. The respondent complained that the information provided still did not properly articulate a coherent claim, and duly applied to have the disability discrimination complaint struck out.

15. Miss [APPELLANT] then went to get legal advice. In an email dated 2 December she sent two important documents to the Tribunal and the respondent’s solicitor. She told me today that she had help drafting those documents from a [NAME], and they do have the air of documents which have had some professional input.

16. The first document was essentially a submission responding to the strike out application. That raises some general issues about the high threshold for strike out in discrimination cases. However, it seems to respond to the strike out application as if it is an application about disability status. The respondent has conceded that the claimant is disabled by reason of her ADHD, and so disability status is not an issue in the case. The issue is whether any viable claim for failure to make reasonable adjustments can be identified.

17. The second document is much more relevant and, potentially, useful. It sets out the various stages of the legal test in failure to make reasonable adjustment claims, and explains the claimant’s case.

18. According to the document, the PCP the claimant seeks to rely on is: “The Respondent’s requirement that I understand, retain and follow verbal or inconsistent instructions without written clarification, structured guidance, or regular managerial support, and that I comply with all workplace expectations without adjustments for the effects of ADHD.”

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19. This is not, in my view, something that can properly be described as a provision, criterion or practice applied by the respondent. It moves straight to the end point and focuses on the adjustments that are said to be absent. The PCP is instead intended to represent the base position before any adjustments are applied ([NAME] v [NAME] of Northumbria Police 2014 WLR 445).

20. Stripping back what the claimant has said, then, the PCP actually appears to be a requirement to understand, retain and follow verbal or inconsistent instructions. A requirement to understand, retain and follow verbal instructions, at least to some degree, would seem to be capable of being a a PCP, and is probably one applied by virtually every employer in the land. The respondent may dispute that there was any requirement to follow inconsistent instructions, but that would not be a matter that could properly be determined on a strike-out application.

21. In relation to disadvantage, the document says this: “Due to my ADHD, I experience difficulties with attention regulation, working memory, and processing complex or unclear verbal information. Without clear, consistent and structured communication, I am more likely than someone without ADHD to misunderstand instructions, become confused about expectations, and be exposed to criticism or disciplinary consequences. This disadvantage materialised when: I submitted a conflict-of-interest form and was led to believe I could visit [APPELLANT] A in custody in a personal capacity. The information and guidance I received were inconsistent and not confirmed in writing, causing misunderstanding and detriment that would have been less likely for someone without ADHD.

22. I can see how the problems caused by ADHD might well affect the claimant in her everyday work, and why she might, for example, require clear instructions in order to perform her job effectively. However, Miss [RESPONDENT] must be right when she says that the disadvantage complained about in this case is the dismissal. That is consistent with what Miss [APPELLANT] says in the extract above, as to when the disadvantage “materialised”. Miss [APPELLANT]’s case must therefore explain how the PCP disadvantaged her in a way which is connected to her dismissal.

23. There seem to be two strands of unfairness which Miss [APPELLANT] puts forward. The first, as recorded by [APPELLANT], is that Miss [APPELLANT] did not record on the COI that she was in a personal relationship with [NAME] because she did not consider that one instance of intimacy amounted to a personal relationship. She does not say that she reached that view because of her ADHD. Indeed, she says in her claim form “I do not believe that any reasonable [APPELLANT], after knowing someone for a period of 10 days, would define themselves as being in a relationship.”

24. The second specific issue which Miss [APPELLANT] has pointed to, again, as reflected in the extract above, is her manager allegedly not getting back to her to confirm whether or not she could visit [NAME] in prison, and a resulting lack of clarity as to whether she could do so or not.

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25. At its highest, it seems Miss [APPELLANT] relies on a tacit confirmation that she could visit [NAME], provided she did so in a personal capacity. If that is correct – and I assume it is because I have to take Miss [APPELLANT]’s case at its highest – then that is equally unclear for an employee who has ADHD or does not. I can see the argument that the lack of clarity caused Miss [APPELLANT] to think it was okay for her to visit [APPELLANT]. I cannot see the argument that her ADHD caused the lack of clarity, or caused her to think it was okay for her to visit A. Miss [APPELLANT] was unable to help me to understand that connection in the discussions we had.

26. Ultimately, Miss [APPELLANT] was dismissed because the respondent formed the judgment that she was in an inappropriate relationship. Whether it was entitled to do that or not is a matter which will be examined in the context of her unfair dismissal claim.

27. The law around discrimination, particularly reasonable adjustments, is complicated. Where there is difficulty in identifying the various elements and expressing them in a straightforward way that might be because the claimant is not experienced in the law, in which case it is the duty of the Tribunal to assist. Equally, however, it might be that the difficulty arises from the fact that the facts of the case do not give rise to a claim that “works” in law. In this case, [NAME] has tried to identify a claim that works, the claimant has tried, with the assistance of a [NAME] and the benefit of time away from the pressured environment of the Tribunal, and finally I have tried. I am confident that this is a case that falls into the second category rather than the first. The claim has no reasonable prospects of success not because the claimant won’t be believed at a final hearing, but simply because her ‘real’ claim is an unfair dismissal claim and not a claim of failure to make reasonable adjustments. As a viable claim of failure to make reasonable adjustments cannot be articulated I find that this part of the claim has no prospects of success and I strike it out.

28. I am conscious in making this decision of the weight of authority which cautions against striking out discrimination and whistle-blowing cases on the basis that they are fact-sensitive and will generally require determination on the evidence (see, amongst others, [NAME] v [COMPANY] Union [2001] ICR 391 and [NAME] v North Glamorgan NHS Trust 2007 ICR 1126). However, there is an important caveat that that principle applies where there is a central dispute of fact. That dispute may be as to the overt facts of the case or, perhaps more commonly, as to the motivation of the employer giving rise to certain acts or omissions. The principle does not prevent the Tribunal from striking out claims which are unmeritorious because, even taking the claimant’s case at its highest, there is simply no sustainable claim which can be articulated within the applicable legal framework.

Reconsideration

29. Alongside the claimant’s application for written reasons she made an application for reconsideration of the strike out Judgment. That will be dealt with in a separate Judgment.

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Approved by:

Employment Judge Dunlop

Date: 27 February 2026

WRITTEN REASONS SENT TO THE PARTIES ON

15 April 2026

FOR EMPLOYMENT TRIBUNALS

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Recording and Transcription

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

Case No: 2407366/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Manchester Employment Tribunal (by CVP)

On:

4 December 2025

Before: Employment Judge Dunlop

Representation

Claimant: [redacted] Respondent: [redacted]

JUDGMENT ON A PRELIMINARY HEARING

1. The claimant’s complaint of disability discrimination (failure to make reasonable adjustments) has no reasonable prospect of success and is struck out.

2. The claimant’s complaint of unfair dismissal will proceed to a final hearing.

Approved by Employment Judge Dunlop

Date: 4 December 2025

SENT TO THE PARTIES ON

27 January 2026

FOR EMPLOYMENT TRIBUNALS

Case No: 2407366/2024

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

Recording and Transcription

Case No: 2407366/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

The claimant’s application dated 28 January 2026 for reconsideration of the judgment sent to the parties on 27 January 2026 is refused.

REASONS

1. I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing her claims. References in square brackets (e.g. [25]) are references to paragraph numbers from the written reasons promulgated alongside this Judgment, following the claimant’s request.

The Law 2. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68).

3. Rule 70(2) of the 2024 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

4. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v [NAME] and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that:

“the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality ([NAME] v [NAME] [1975] ICR 395) which militates against the discretion being exercised too readily; and in [NAME] v [NAME] [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.” 5. Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by [NAME] said in paragraph 34 that:

Case No: 2407366/2024

“a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” 6. In common with all powers under the 2024 Rules, preliminary consideration under rule 70(2) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.

The Application

7. The thrust of the claimant’s application is that the reasonable adjustments complaint was unsuitable for determination at a preliminary hearing, and required the Tribunal to hear and weigh evidence before it could properly reach a decision. The application posited that once the Tribunal had accepted that the claimant was disabled (the respondent having conceded this point) a strike out for “no reasonable prospect of success” is not legally permissible. That is a misstatement of the law. Established cased law urges caution in striking out discrimination claims where disputes of fact are central to the claim. There is no absolute bar.

8. Whilst I understand that Miss [APPELLANT] disagrees with my Judgment, there is nothing in the application which persuades me that there is a reasonable prospect of the Judgment being varied or revoked at a reconsideration hearing.

9. In those circumstances, I must refuse the application.

Approved by:

Employment Judge Dunlop

DATE: 27 February 2026

JUDGMENT AND REASONS SENT TO THE PARTIES ON

15 April 2026

FOR THE TRIBUNAL OFFICE