In person Interpreter : Mr. Gilbert Babida v Respondent — 2022

At this open preliminary hearing on 7 November 2022, the tribunal considered whether the claimant was disabled for Equality Act purposes between February 2020 and July 2021 by reason of diabetes, whether a handwritten document was an amendment to the claim, and whether the age, race and public interest disclosure complaints should be struck out or made subject to deposits. It found that the claimant was disabled by diabetes during the relevant period. In reaching that conclusion, the tribunal accepted the claimant's evidence about fatigue, frequent urination, disturbed sleep, and difficulty with heavy manual work, and treated the effect of the condition as more than minor or trivial. It also proceeded on the basis that the effect of the condition should be assessed with medication and dietary measures disregarded where appropriate.

The tribunal held that the claimant was not in fact pursuing a formal amendment application. The document headed as additional information was treated as background material and further particulars, to be relied on if necessary to support an inference of discriminatory treatment in the dismissal process rather than as a new set of pleaded allegations. It indicated that, if the claimant wished to rely on those matters, they should be addressed in his witness statement.

On the strike-out and deposit applications, the tribunal refused to strike out the discrimination complaints, including the age, race and disability-related complaints, and refused to require deposits for them. Applying the cautious approach required at an early stage, it said it could not conclude that those complaints had no reasonable prospect of success or little reasonable prospect of success, because they depended on oral evidence and the wider context of the claimant's treatment and dismissal. The merits of those discrimination claims were therefore left for the full hearing.

By contrast, the tribunal held that the automatic unfair dismissal allegation based on the alleged public interest disclosure had little reasonable prospect of success and ordered a deposit of £500. The alleged disclosure concerned a grievance dated 22 June 2021 about a manager and supervisor smoking near the entrance outside the designated area, but the tribunal noted that the claimant had already been suspended for misconduct and invited to a disciplinary hearing when the grievance was made. It considered that this created a difficulty for the claimant in showing that the reason, or principal reason, for dismissal was the disclosure.