Claimant v Surrey & Sussex NHS Trust — 2021

The claimant presented her claim in October 2019, and by the 1 March 2021 video hearing the case had already been through two preliminary hearings and several case management orders. Employment Judge Andrews sat alone to consider strike out and deposit issues under rule 37 of the Employment Tribunal Rules 2013, against the background of repeated disputes about particulars and disclosure. No monetary award was made at this hearing.

The tribunal found that the claimant had failed to comply fully with orders requiring disclosure and clarification of the pleaded case. It accepted, however, that striking out the whole claim would be disproportionate in light of the prejudice to the claimant and the general policy that discrimination claims should, where possible, proceed. The tribunal therefore declined to strike out the case for conduct alone, but noted that the claimant had only very belatedly complied with the earlier orders and had still not provided general liability disclosure.

The tribunal struck out the sex discrimination, age discrimination, unpaid notice pay and unpaid wages claims because the claim form and later particulars did not provide particulars of those claims, even after repeated opportunities to clarify them. It relied on the pleaded material as clarified on 11 February 2021, and concluded that the sex and age discrimination allegations lacked the necessary particulars to give them reasonable prospects of success. The unpaid notice pay and wages claims were also struck out on that basis.

For disability discrimination, the tribunal held that only the allegations based on the factual matters in paragraph 116 of the consolidated claim document could proceed. It identified those matters as including the alleged failure to postpone a capability hearing and the events of a telephone call on 14 August 2019. The tribunal said that the disability discrimination case was limited to those factual scenarios, rather than the wider matters sought to be introduced in the later particulars.

The race discrimination and constructive dismissal claims were not struck out. The tribunal also refused to make deposit orders for either claim, holding that it could not say at that stage that they had little reasonable prospects of success. In reaching that view, it referred to the potential time-limit issues identified by the respondent, but considered that those questions had to be assessed after evidence, particularly given the factual background of the claimant's ill health and the overlapping disciplinary and capability processes.