Ms K Kilraine v 1) Henry Fawcett Primary School & Children’s Centre; 2) London Borough of Lambeth; 3) Mayor & Burgesses of the London Borough of Lambeth OPEN PRELIMINARY HEARING — 2022

At the open preliminary hearing on 5 July 2022, Employment Judge Tsamados dealt first with the claimant's request for a postponement. The claimant did not attend. She had emailed that she could not attend because of medical conditions and, if the hearing proceeded, she withdrew her claim under duress. The tribunal accepted the medical evidence that she had serious impairments, but refused postponement after balancing fairness to both sides, the long history of the case, the lack of any clear prognosis, and the respondents' need for a hearing within a reasonable time.

The tribunal then considered the respondents' strike out application under rule 37(1)(e) of the Employment Tribunals Rules of Procedure 2013, on the basis that it was no longer possible to have a fair hearing. The claim had been presented on 24 March 2020 and was said to concern race, disability and religion or belief discrimination, detriments for protected disclosures, and monetary claims about wages and other payments. The judge found the claim form contained insufficient particulars, the claimant had not complied with directions for further and better particulars, and the respondents still did not know the case they had to meet or which witnesses they would need.

The judge also took into account the repeated last-minute requests for extensions or postponements, the absence of any realistic indication of when the claimant would be fit to participate, and the fact that earlier medical predictions had not proved reliable. Applying the authorities cited in the reasons, including Teinaz, Andreou, O'Cathail, Phelan, Peixoto and Riley, together with the overriding objective, the tribunal concluded that a fair hearing was no longer possible and struck out the claim. The alternative submission that the claim should be dismissed as withdrawn under duress was rejected as unsafe to treat as an actual withdrawal. The full hearing listed for September 2023 was vacated.