did not attend For the v Ms S. Jolly Q.C. — 2021

The claimant was a trainee solicitor at Reed Smith LLP whose training contract had been extended because of injury and later health-related absences. At this preliminary hearing on 21 May 2021, the tribunal was dealing with strike-out and case-management issues arising from a claim presented on 25 July 2020 alleging race and disability discrimination and an unlawful deductions claim. The respondent had investigated whether the claimant had been at work in the week beginning 6 January 2020 and had raised concerns about the claimant's non-compliance with earlier orders, including disclosure of GP records and a disability witness statement.

The race discrimination claim in paragraphs 66-74 was struck out because the tribunal found that the same events in 2015-2016 had already been litigated and decided in the claimant's 2016 proceedings. The tribunal treated the matter as issue estoppel/res judicata and relied on the earlier decision striking out the race discrimination, harassment and disability adjustment claims in that case. In the reasons, the tribunal cited Virgin Atlantic Airways Ltd v Zodiac Seat UK Ltd and Arnold v National Westminster Bank plc (No 1) on the effect of earlier adjudication.

The remaining disability claims were not struck out under rule 37 at this stage, but the tribunal made them subject to an unless order. The disability bundle covered the s.13 and s.15 allegations and the reasonable-adjustment issues under ss.20 and 21, and the tribunal said it needed the claimant's GP records and a structured witness statement to decide whether he was disabled at the material time. Although the tribunal accepted that he had been unwell in recent weeks, it found his explanations for the prolonged default in compliance were not convincing and considered that striking out would be too draconian at that point.

The s.26 disability harassment allegations, including the October-November 2019 meetings about associate roles and the January-February 2020 investigation and disciplinary process, also remained live. The tribunal noted the broader case-management context, including the possibility of a deposit order on the victimisation claim, which was said to arise from a 2016 grievance and the 2016 tribunal claim. The alleged unlawful deductions claim concerning underpaid statutory sick pay was also not struck out; the claimant was directed to provide a revised calculation and supporting documents, while the respondent was ordered to provide its material and a counter-schedule. The planned August final hearing was vacated, and a further hearing was listed for 7 July 2021.