Miss Priyanka Oliver v Surrey and Sussex NHS Healthcare Trust — 2023

At a preliminary hearing on 27 September 2023, Employment Judge Fowell struck out the claim under rule 37(1)(d) of the Employment Tribunal Rules of Procedure on the basis that it had not been actively pursued. This was the second hearing the claimant had failed to attend. The claimant had also failed to attend the earlier hearing on 17 July 2023, when she was represented by the Chartered Society of Physiotherapy, and the tribunal noted that no representative attended on her behalf either.

After the July hearing, the claimant was ordered to write to the tribunal within seven days explaining her absence and was invited to withdraw the claim if she did not wish to pursue it. No response was received. She was also directed to provide further information about the claim and a schedule of loss by 7 August 2023, but no schedule was filed. The tribunal noted that no steps had been taken to progress the claim since it was submitted in November 2022.

The tribunal recorded that the underlying claim was unclear, but appeared to concern a flexible working application following maternity leave. The claimant had alleged that the initial refusal amounted to race discrimination, disability discrimination, or discrimination on grounds of pregnancy or maternity. The judge noted that it was not clear why race or disability were said to be involved, or what disability was relied on, and that further questions had been put to the claimant to clarify the claim.

At the September hearing, the tribunal clerk contacted the claimant by telephone. The claimant said she was abroad and trying to sort out representation, and she later emailed apologies saying she had tried to join the hearing. The respondent said there had been no contact from the claimant since the previous hearing and that it had sent her the earlier case management order and a hearing link. The judge considered an adjournment and the possibility of wasted costs, but concluded that there was no real intention to actively pursue the claim and that a strike-out was proportionate under the overriding objective.