Miss A Harvey v Nacro — 2022

At the preliminary hearing on 2 August 2022, Employment Judge Nicklin considered whether Miss Harvey had complied with an Unless Order requiring disclosure of relevant GP notes and specialist reports and written confirmation of which disabilities were relied on for each complaint. The tribunal accepted that she had identified Autism and ADHD as the only impairments on which she relied, and that she had linked those impairments to her pleaded disability complaints, but held that she had not materially complied with the disclosure side of the order because significant Autism-related material and part of the ADHD material had not been provided.

Applying Rule 38 and the authorities on material compliance and relief from sanctions, the tribunal held that the disability discrimination claims, disability-related harassment claim and victimisation claim stood dismissed under the Unless Order, but then granted relief from sanctions to a limited extent. Relief was allowed only so far as the claims could proceed on the admitted ADHD basis. Relief was refused for any claim based on Autism or any other alleged disability, because the tribunal considered the non-compliance serious, the withheld material relevant, and further compliance likely to remain problematic.

The protected disclosure claim was not affected by the Unless Order and remained listed to proceed to final hearing. The tribunal also refused the Claimant's application to amend her claim to add constructive unfair dismissal and/or a discrimination complaint based on resignation or constructive dismissal. It held that she did not have sufficient qualifying service for constructive unfair dismissal under section 98 of the Employment Rights Act 1996, that the amendment was late and under-particularised, and that allowing it would require further directions, likely postponement, and additional prejudice and cost.