Mr J Grantham v Bournemouth, Christchurch and Poole Council — 2021

This was a rule 38(2) application to set aside a dismissal that had taken effect after the claimant failed to comply with an unless order dated 22 April 2020. The underlying claim, presented in March 2019, comprised unfair dismissal and disability discrimination allegations relating to a dismissal in October 2018. The tribunal recorded a long procedural history of repeated case management orders, extensions of time, and warnings, together with the claimant’s continued failure to provide the particulars, schedule of loss, medical evidence, disability impact statement, and other information ordered.

The tribunal applied the overriding objective and considered the interests of justice in the context of rule 38, CPR rule 3.9, and the authorities it cited including Thind v Salvesen Logistics Ltd, Abergaze v Shrewsbury College of Arts & Technology, and The Governing Body of ST Albans Girls’ School v Neary. It accepted that there had been non-compliance over a prolonged period and rejected the argument that the relevant orders were unclear. It also found that the claimant had still not given sufficient clarification of the disability discrimination case, despite multiple opportunities and further correspondence after the deadline.

The application succeeded only in relation to unfair dismissal. The tribunal said that claim was more straightforward, short, and simple enough to be managed and fairly heard, and that refusing to let it proceed would be too draconian. It therefore partially set aside the unless order for the unfair dismissal claim only, allowing the claimant to pursue that claim under sections 94 and 98 of the Employment Rights Act 1996.

The disability discrimination claims were not reinstated. The tribunal described them as unclear and insufficiently particularised, noted the absence of adequate medical evidence and a disability impact statement, and concluded that there was no realistic prospect of further progress by way of clarification. As a result, all disability discrimination claims remained dismissed under rule 38, and no remedy was determined.