Employment Tribunal Strikes Out Claimant’s Disability Discrimination Case

OUTCOME: Struck Out

Case Number: 2402875/2024 & 3309200/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] On: 3 October 2025

Before: Employment Judge Cowen

Appearances For the claimant: [redacted] For the respondent: [redacted]

RESERVED JUDGMENT

1. The [COUNSEL] claim for direct disability discrimination is struck out. 2. The Claimant is not allowed to bring forward any further amendment to her claims or add additional claims.

REASONS

1. The Claimant has brought two separate claims to the Tribunal. The first claim issued on 15 May 2024 (3309200/2024) claimed race and disability discrimination (reasonable adjustments) and arrears of pay. The second claim issued on 20 September 2024 claimed unfair dismissal and whistleblowing. They were consolidated on 8 May 2025.

2. The [APPELLANT] had been ordered to provide details of the first claim and the automatic unfair dismissal in her second claim. The Respondent asserted that the Claimant had failed to comply with this order. A further case management hearing on 8 May 2025, identified some of the claims, but not all. The Claimant was therefore ordered to provide details in writing.

3. At a further case management hearing on 1 July 2025 it was still not possible to fully particularise all the [APPELLANT] claims, as the Tribunal ran out of time. [APPELLANT] [NAME] outlined the attempts which had been made to obtain details from

the Claimant and the way she was not able to articulate the particulars of her direct discrimination claim, nor the PCP in relation to the reasonable adjustments claim. Further orders were made for the Claimant to provide full particularisation by 22 August 2025.

4. The Respondent submitted that the Claimant had again failed to comply with the orders and that in respect of all claims, there is a lack of reasonable prospects of success.

5. Respondent’s submission Application to strike out due to lack of prospect of success/failure to comply with an order: a. S.13 Direct disability/race discrimination b. S. 20 Failure to make reasonable adjustments c. S.27 victimisation d. S.26 harassment, e. S.103A automatic unfair dismissal due to protected disclosure f. Breach of contract

6. The Respondent submitted that the Claimant has been given eight separate opportunities to identify and detail her allegations since she commenced her claims. They contend that the Claimant has not complied with the orders and has repeatedly set out a long narrative and commentary which does not provide the detail required.

7. Direct Disability Discrimination a. The Respondent submitted that it does not accept the Claimant’s disability status, b. the Claimant has failed to give specific acts of disability discrimination c. The Claimant has failed to explain the link between her disability and any of the alleged acts

8. Failure to make Reasonable Adjustments a. The Respondent submitted that the Claimant has not identified the PCP relied upon, as it cannot be found in the witness statement 27 January 2025 as asserted, b. The Claimant has failed to set out why the reasonable adjustment were necessary

9. Harassment and Direct Race Discrimination a. The Respondent acknowledges that the reference to ‘spice girls’ is an allegation of harassment, but says that the Claimant remains vague on the other allegations

10. Victimisation a. The Respondent submits that the Claimant has failed to identify the protected act relied upon, and b. Failed to particularise the detriment she suffered.

11. Breach of Contract a. The Claimant has not identified a specific contractual term b. The Claimant has failed to identify detriment as a result of breach

12. In the alternative the Respondent asserted that a deposit order should be made where there is little prospect of success.

13. Alternatively the Respondent submitted that the Claimant has no reasonable prospect of success. This was amplified by the fact that the Claimant has failed to provide a PCP and therefore cannot succeed in her claim, or said that she never asked for adjustments to be made.

14. Finally the Respondent asserted that as the Claimant could not show any nexus between her treatment and her race, those claims also had no prospect of success.

15. [APPELLANT] submission The [APPELLANT] asserted that the Respondent’s skeleton argument undermined their application. She asserted that this application was a tactical attempt to strike out and that this was not an exceptional case which warranted strike out.

16. The [APPELLANT] submitted that her case needs to be assessed fairly and that she should not be penalised for not having perfect drafting. She asserted that there have been ongoing issues up to the point of her dismissal.

The Law 17. Rule 38 Employment Tribunal Rules 2024 “The Tribunal may, on its own initiative, or on the application of a party strike 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 by 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 the tribunal rules or with an order of the tribunal”

18. The case of [NAME] [NAME] [NAME] University Health Board v [NAME] 2013 ICR 1108, EAT, set out that, in suitable cases, applications for strike-out may save time, expense and anxiety. However, in cases that are likely to be heavily fact-sensitive (such as those involving discrimination or public interest disclosures (‘whistleblowing’)) the circumstances in which a claim will be struck out are likely to be rare. Similar sentiments had been previously expressed by the House of Lords in [NAME] and [NAME] v [COMPANY] and [NAME] 2001 ICR 391, HL.

19. In [NAME] and [NAME] [2011] ICR D9, CA, the CA held that a case should not be struck out where the chance of success was ‘more than fanciful’.

20. [COMPANY] v [NAME] 2006 IRLR 630, CA.which says that the Tribunal must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; but that the Tribunal must consider whether such an order is a

proportionate response to the noncompliance.

21. Finally, in deciding whether to strike out a party’s case for non-compliance with an order under rule 38(1)(c), a tribunal will have regard to the overriding objective set out in rule 3 of seeking to deal with cases fairly and justly. This requires a tribunal to consider all relevant factors, including: a. The magnitude of the non-compliance b. whether the default was the responsibility of the party or his or her representative c. what disruption, unfairness or prejudice has been caused d. whether a fair hearing would still be possible, and e. whether striking out or some lesser remedy would be an appropriate response to the disobedience — see [NAME]) [COMPANY] v Armitage 2004 ICR 371, EAT.

22. In [NAME] v Academies Enterprise Trust and others [2015] ICR 617, EAT said that “Rules are there to be observed, orders are there to be observed, and breaches are not mere trivial matters; they should result in careful consideration whenever they occur”.

23. The Tribunal should consider rule 6(2) Tribunal Rules 2024 and consider; “a) waiving or varying the requirement. b) striking out the claim or the response, in whole or in part, in accordance with rule 38, c) barring or restricting a party’s participation in the proceedings, d) awarding costs in accordance with Part 13.

Decision

24. The Tribunal was satisfied that the Claimant’s inability to provide the required detail of her claims, was not a willful refusal to comply with orders, but an inability to articulate her complaints in a way which lays out the legal basis of her claims.

25. The Claimant has been given the opportunity to provide details both in writing and verbally at case management hearings. On 8 May 2025, the Judge attempted to gain that information, but ran out of time to cover more than the public interest disclosure claims. She indicated that the Claimant needed to be able to address her claims at the next hearing. It was clear from the case management order that direct disability discrimination, reasonable adjustments direct race discrimination, harassment, victimisation and breach of contract all remained unspecified.

26. Unfortunately the next Judge was also unable to identify the claims on 1 July 2025. He indicated that ‘despite extensive efforts’ he was unable to identify the direct disability discrimination claim. He ordered the Claimant to provide the information in writing by 22 August 2025.

27. The Tribunal on 1 July 2025 also tried to identify the claim for reasonable

adjustments and had limited success on this front as the [APPELLANT] could not articulate the PCP she relied upon. Once again the Claimant was given the opportunity to do so in writing.

28. The document which the Claimant provided in response to this order, did to a limited extent provide details of four reasonable adjustments she asserts should have been made. It was of no assistance in defining the PCP. The document also added to the complexity and confusion of the case, by raising new and different matters, to those contained in the ET1 forms.

29. Where considering the non-compliance with an order, [NAME] v Armitage [2004] ICR 371 states that the overriding objective is the main consideration. The Tribunal must consider the magnitude of the default, what disruption or unfairness it has caused and whether it is due to the [COUNSEL] or her representative. Ultimately the decision of the Tribunal must consider whether a fair hearing remains possible.

30. The Tribunal also considered [NAME] v Academies Enterprise Trust [2015] IRLR 208, where EAT said that “ A failure to comply with orders of a Tribunal over some period of time, repeatedly, may give rise to a view that if further indulgence is granted, the same will simply happen again”. It was also said that a case should be considered where it has had its fair share of court resources and should not deprive others cases from a hearing date.

31. This claim has been the subject of four case management hearings, in between these, the [APPELLANT] has been asked to provide further details of her claim, or be prepared to provide them at the next hearing. On each further occasion, the Tribunal has been unable to identify the details of the claims being raised. This Tribunal considered whether giving the Claimant a further chance to set out her claims, would result in the claims being clear to the Tribunal and Respondent. The Tribunal concluded that based on past performance, it was more likely to lead to further new points being raised and a deflection of the central, original points which would remain unclear.

32. The Tribunal reminded itself that sanctions for breaches of orders are used to secure future compliance, they are not there to be punitive. The Tribunal therefore considered whether an unless order may be sufficient in this case, in order to ensure the Claimant complies. However, the Tribunal also considered the fact that the Claimant in this case has been given a number of opportunities to comply, some in writing and some verbally, having been given notice that she should be prepared to be able to explain her claims. She appears not to be able to harness her thoughts sufficiently to provide the relevant information which the Tribunal and the Respondent require in order to specify the claims.

33. The Tribunal therefore did not consider that an unless order would succeed to ‘ratchet up the pressure’ as set out in [NAME] v [COMPANY] UK Branch [2025] IRLR 656, as it would not be likely to obtain any more coherent explanation from the Claimant than any of her previous attempts.

34. The Tribunal also considered whether any of the other sanctions under r6(2)

could be applied to assist in progressing the case to a final hearing. The Tribunal considered that restricting the [APPELLANT] participation in the proceedings, or awarding costs would not serve the practical requirement of understanding the case which the [APPELLANT] seeks to bring to the Tribunal.

35. The Tribunal considered that the Claimant has been able to identify a number of claims thus far, including Unfair dismissal (s.98 ERA), Automatic unfair dismissal (s.103A ERA), detriment from whistleblowing (s.47B ERA) and Failure to make reasonable adjustments. These were set out in the order made on 1 July 2025. The failure to make reasonable adjustments claim was amended in part by the [APPELLANT] application today.

36. The Tribunal considered that in order to allow this case to proceed in any way to a final hearing, there needs to be an end to the repeated attempts to clarify the claims, which appear to lead to amendment applications and further complexity, rather than clarity.

37. The Tribunal has considered the overriding objective in this case; and considered that the parties are not on an equal footing, where the Respondent is not aware of the specific allegations being made. Further that a large and disproportionate amount of Tribunal time has been taken up in trying to extract from the [APPELLANT] the details of her claim. The claims were issued in May and September 2024 and are no further forward today than they were at the beginning, save for a very few points.

38. Furthermore, the Tribunal considered the interests of justice and concluded that the most appropriate course of action is to restrict the Claimant’s claim to the existing claims, which have been particularised. Those claims which have not been particularised and which cannot be identified in the list of issues, should not be allowed to proceed any further.

39. The Tribunal have strived over a number of hearings and orders to try to assist the claimant and to ensure that a fair hearing of her complaints can occur. Reluctantly, this Tribunal has reached the conclusion that there are no further orders, or preliminary hearings which would be proportionate, or in the interests of justice, to try to elucidate the legal points which the Claimant attempts to bring to the Tribunal.

40. The Tribunal therefore reluctantly came to the conclusion that the allegations in relation to direct disability discrimination, which cannot reasonably be responded to in detail by the Respondent, as the Claimant is not able to express the aspects of her claim which identify the legal issues, must be struck out for failure to follow an order and/or having no reasonable prospect of success.

41. Furthermore, the Tribunal will not allow any further additional allegations or applications to amend to add any claims, to be made by the Claimant. The list of allegations and issues is now complete and the case will proceed to case management and listing ( a notice of hearing will be sent to the parties).

Approved by:

Employment Judge Cowen

6 November 2025

JUDGMENT SENT TO THE PARTIES ON

07/11/2025

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]. 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.[NAME] practice-directions/

Case No: 2402875/2024 3309200/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted]

(2) [RESPONDENT] [COMPANY] at: Watford (by CVP)

On: 17 December 2025

Before: Employment Judge Dick

JUDGMENT

1. The claimant was disabled at the material time within the meaning of the Equality Act 2010 because of moderate to severe hearing loss.

2. The claimant’s application for wasted costs against the respondent is refused.

Approved by:

Employment Judge Dick

17 December 2025

JUDGMENT SENT TO THE PARTIES ON

2 February 2026...................................

S [NAME] ................................................................ FOR THE TRIBUNAL OFFICE

Notes

Case No: 2402875/2024 3309200/2024

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]. 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.[NAME] practice-directions/

Case Number: 3309200/2024.

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

[NAME] [APPELLANT] v [RESPONDENT] at: Norwich (by CVP)

On: 5 March 2025

Before: Employment Judge M Warren

Appearances For the Claimant: [redacted]

For the Respondent: [redacted]

JUDGMENT on APPLICATION for INTERIM RELIEF

The Claimant’s Application for Interim Relief is refused.

REASONS Background

1. Miss [APPELLANT] was employed by the Respondent between 4 January 2021 and 13 September 2024 as an Assistant Commercial Accountant.

2. There are in fact two sets of proceedings.

3. The first claim was issued in Manchester under case number: 2402875/2024. This was issued after Early Conciliation between 5 March and 16 April 2024, the ET1 Claim Form being dated 15 May 2024. Those claims are of race discrimination, disability discrimination (the disability relied upon being a hearing impairment) and owed wages.

4. The second claim issued in Watford under Case Number: 3309200/2024, has been issued as a result of Miss [APPELLANT] being dismissed on 13 September 2024. Early Conciliation was on 19 September 2024 and the ET1 Claim Form is dated 20 September 2024. The claim is of unfair dismissal and protected interest disclosure (whistle blowing) detriment and automatic unfair dismissal.

Case Number: 3309200/2024.

2 5. The ET1 contains an Application for Interim Relief based upon, Miss [APPELLANT] says, that she was automatically unfairly dismissed for having made protected disclosures.

6. I have not seen the tribunal file, but I understand that there was a Preliminary Hearing on the Manchester case on 27 November 2024. The Employment Judge in that instance referred the case to the Regional Employment Judge for a transfer to this Region, the South East, administered from Watford.

7. I believe the transfer has taken place, although I am not absolutely certain and I do not think at this stage the two claims have yet been consolidated, though no doubt in due course they will be. I am not sure why it has taken so long for the Application for Interim Relief to have been listed, certainly s.128(3) of the Employment Rights Act 1996 requires that such an Application should be determined as soon as practicable. However, we are where we are and the Application is before me today. Documents before me today 8. I have received a Bundle of documents put together by the Respondents containing documents agreed with Miss [APPELLANT], for which I am grateful. There are a couple of documents Miss [APPELLANT] wanted included which were not. They have been provided separately by Miss [APPELLANT]. Their admissibility in evidence is disputed by reason of privilege. I make no further reference to them. There is no need for me to do so.

9. I have received Witness Statements from Miss [APPELLANT] and for the Respondents, from a Ms [APPELLANT] of HR and a Ms [NAME] who was the Dismissing Officer.

10. This being an Interim Relief Hearing, I have not heard evidence.

11. I also had from Mr [RESPONDENT], a helpful document entitled “Respondent’s Submissions”, for which I am grateful. Miss [APPELLANT] had the opportunity to see that in advance of the start of the hearing, which should have helped her understand the matters I am dealing with today. The Law 12. The right to apply for Interim Relief is set out at s.128(1) of the Employment Rights Act 1996 (“ERA”). In short, an Order for Interim Relief is an Order that an employer re-instate the dismissed employee pending the outcome of the claim for unfair dismissal, or continue to remunerate the employee in accordance with their contract of employment pending the outcome of their claim.

13. Section 129(1) of the Employment Rights Act 1996 sets out that the test for determining an Interim Relief Application is whether the claim is likely to succeed. Amongst the types of cases that have the benefit of this

Case Number: 3309200/2024.

3 jurisdiction, are cases of automatic unfair dismissal for protected disclosures, under s.103A ERA 1996.

14. Therefore the key for an Interim Relief determination is what the word, “likely” means. In the case of [NAME] v Shippam Limited [1978] IRLR 450, that expression was said to mean, “a pretty good chance of success”.

15. Some years later, in the case of [NAME] v [COMPANY] EAT0408/09, the then President of the Employment Appeal Tribunal Mr Justice Underhill, (as he then was) had been invited to re-visit that statement of the test of what, “likely” meant and he declined to do so. He said in that case,

“There are good reasons of policy for setting the test comparatively high”.

16. In London City Airport v Chacko [2013] IRLR 610, the Employment Appeal Tribunal explained that on an Interim Relief Application, the process to be followed by the Employment Judge hearing it, is to carry out an expeditious summary assessment on how the case appears on the material available, doing the best that one can on untested evidence advanced by each side.

17. Her Honour Judge Eady QC in [NAME] v [NAME] UK EAT0283/17, gave a similar explanation of the process the Tribunal has to follow in reaching a summary conclusion on what is before it, in determining an Interim Relief Application.

18. Lastly, I make reference to the case of Ministry of Justice v Sarfraz [2011] UK EAT0578. On an Interim Relief Application in a whistle blowing case, for the Claimant to succeed the Tribunal must find that they are likely to succeed on each element of such a claim. It was also reiterated that, “likely” does not simply mean, “more likely than not”. It is not simply an at least 51% chance of success. It connotes, as we know from [NAME], a significantly higher degree of likelihood.

19. The key elements of a whistle blowing case, (the elements that Miss [APPELLANT] must satisfy me she is likely to succeed on) are that: 19.1. She is likely to be found to have made a disclosure of information, (not merely the making of an allegation). 19.2. It is likely to be found that was information of something she believed tended to show one of the things set out at s.43B(a) – (f) ERA 1996, in this case most probably, a breach of a legal obligation. 19.3. She must show that she will be likely to be able to convince the Tribunal hearing her case that such belief was reasonable and that the disclosure she made was in the public interest.

Case Number: 3309200/2024.

4 19.4. Finally, she must show that the Tribunal hearing her case is likely to conclude that such disclosures were the reason or principle reason for her dismissal. Analysis and Determination of the Application 20. On Miss [APPELLANT]’s pleaded case, having regard to her Witness Statement and the documents in the Bundle that have been referred to, it is not readily apparent what her disclosures of information are.

21. Following a detailed discussion this morning, which was at times very hard indeed to follow, I believe that we eventually established that there are two alleged disclosures that Miss [APPELLANT] relies upon.

22. The first alleged disclosure, (Disclosure 1) is said to have been made at a Grievance Hearing on 15 March 2024. The Chairperson was a Ms [APPELLANT] and HR advice was provided by a [NAME]. Ms [APPELLANT] made reference to documents in the Bundle, in particular at page 125 to 129, but I could not extract from them where there was disclosure of information as opposed to merely the making of allegations generally speaking of, “discrimination”, without giving details of in what way she was subjected to discrimination.

23. The second alleged disclosure, (Disclosure 2) identified by Ms [APPELLANT] was she says, that on 22 May 2024 in a second grievance, she disclosed that her work was being overcharged to a client. She would say that is a breach of a legal obligation to the client and that it is in the public interest that the Respondent does not overcharge its clients. The client referred to is a [NAME].

24. Potentially Disclosure 2, might be a protected disclosure, although it is right and fair to say that it was identified after some elucidation and that might present Miss [APPELLANT] with some difficulty in the Final Main Hearing, given that it is not clear what the disclosure was, how does she say that influenced the mind of the Dismissing Officer? Be that as it may, it is potentially a protected disclosure.

25. Alleged Disclosure 1 on the face of it does not seem to me a disclosure because I do not see the provision of information, as opposed to allegations. I am not determining the case, of course, I am simply weighing up the likelihood of success.

26. The next question for the Tribunal at the Final Main Hearing would be, was such disclosure the reason or principle reason for dismissal? I ask myself what is the likelihood of Miss [APPELLANT] being able to show that it or they, were? 27. I note that these alleged disclosures were made during a period when Miss [APPELLANT] was already on garden leave. That garden leave followed a protected conversation on 15 February 2024, referred to in the Witness Statement of Ms [NAME].

Case Number: 3309200/2024.

5 28. In her Witness Statement, [NAME] explains that in February 2024, before the alleged protected disclosures, there were discussions about dismissing Miss [APPELLANT] because of her poor performance. I do not know, such discussions might be outrageous and incredibly unfair on Miss [APPELLANT], I have no way of knowing that. That is not what I am concerned about. What I am concerned about is how does that inform the later allegation that the reason for dismissal was the disclosures.

29. The protected conversation of 15 February 2024 proposed to terminate Miss [APPELLANT]’s employment because of poor performance. Ms [APPELLANT] Witness Statement at paragraph 7 says that the decision had been made to remove her.

30. The proposal in the protected conversation is confirmed by letter of 15 February 2024, which is in the Bundle before me at page 216. It refers to her work performance as not being at the expected level, of there being documented examples demonstrating that, of the business needs not being met and that the Respondent feels she does not have the capability to undertake her role.

31. This will raise questions in the mind of the Tribunal Hearing this case at the Final Main Hearing. What was the reason for dismissal in the mind of Ms [APPELLANT]? Was it that Miss [APPELLANT] had made far from clear protected disclosures where the Respondent, before the disclosure, already had in mind dismissing her because of performance? That militates against a finding that in the mind of Ms [NAME], there was some unclear protected disclosure.

32. I see the Dismissal Letter at page 203, makes references to performance, performance concerns and of Miss [APPELLANT] not being able to accept there were such concerns.

33. On that basis, Miss [APPELLANT], I cannot say your case of automatic unfair dismissal for making protected disclosures is likely to succeed.

34. Therefore the Application for Interim Relief is not granted.

Approved by:

Employment Judge M Warren

Date: 13 March 2025

Sent to the parties on: 28/03/2025

For the Tribunal Office.

Case Number: 3309200/2024.

6 Public access to Employment Tribunal decisions Judgments and Reasons for the Judgments are published, in full, online at 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 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.[NAME]