Ms Y Sin v Trade Wind Recruitment Ltd — 2021

At a preliminary hearing on 5 October 2021, Employment Judge McDonald considered the respondent's application to strike out, or alternatively to seek a deposit order in relation to the claimant's claims of unfair dismissal, failure to make reasonable adjustments, and discrimination arising from disability under section 15 of the Equality Act 2010. The application did not extend to the direct discrimination and harassment claims. The central factual dispute was whether the claimant had been at Chesterfield Royal Hospital on 18 December 2019 and therefore unable to attend the disciplinary hearing, or whether the documents relied on to explain that absence had been falsified.

The respondent relied on email responses from Chesterfield Royal Hospital suggesting that a number of the documents were falsified, including the letter said to confirm an urgent bronchoscopy and a hospital stay until 4.20pm. The claimant said she had undergone a sleep test on 17 December 2019, had to return the machine the next day, then underwent an emergency bronchoscopy and was detained at hospital until 4.20pm. The tribunal accepted that the hospital responses were fairly categoric, but held that, on a strike-out application, it could not finally decide that the claimant's documents were falsified without hearing evidence.

Applying Rule 37 of the Employment Tribunal Rules of Procedure 2013 and the authorities cited on strike out, the tribunal refused the strike-out application. It said the claimant's case had to be taken at its highest, the medical records were not in the bundle, and the hospital response was given some 18 months after the event by someone who had not herself seen the claimant on 18 December 2019. The judge also stated that, even if wrong about falsification, a fair hearing would still be possible because the case was not document-heavy and the issue could be addressed in cross-examination. The judgment therefore records no substantive merits finding on the claims, but it does record that a deposit order was made.