Claimant v Respondent — 2023

At a preliminary hearing on 18 September 2023 before Employment Judge McDonald sitting alone, the tribunal dealt with limitation and strike-out issues in the claimant's discrimination proceedings. Proceeding on the assumption that the complained-of acts formed a continuing act up to 26 August 2022, the judge found that the claims were presented two days after the adjusted limitation date of 30 January 2023, but held that it was just and equitable to extend time under section 123 of the Equality Act 2010. In reaching that conclusion, the judge applied the early conciliation extension under section 140B(3) and (4) of the Equality Act 2010 and took account of the claimant's ADHD and ASD, ongoing negotiations into January 2023, and the limited length of the delay.

On the respondent's application to strike out under rule 37 of the Employment Tribunal Rules 2013, the judge applied the authorities on strike out and fair trial, including the two-stage approach discussed in the reasons. He found some non-compliance with case management orders, including late compliance with the disability impact statement order and outstanding medical records, and noted that the claimant had provided draft schedules of loss but not all of the requested detail. He nevertheless found that a fair hearing remained possible and that strike out would be disproportionate, so the application was refused. He instead made an unless order requiring the claimant to provide her medical records by 14 December 2023.

The judge also rejected strike-out based on an alleged failure actively to pursue the case and on unreasonable conduct. He accepted that the claimant had been slow to comply with orders and had prioritised her academic work, but found that she was still pursuing the claim through regular correspondence and that her social media posting and tagging did not justify striking out on the facts before him. He noted that the claimant had indicated she would stop tagging individuals and that the position on anonymity and restricted reporting would be dealt with separately. No merits determination was made at this hearing.