Mrs J Carney v Athena Care (Ormskirk) Limited t/a Abbeywood Lodge — 2021

At the first preliminary hearing on 12 March 2020 the tribunal identified claims of unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments. An Unless Order made on 29 September 2020 and sent on 5 October 2020 required compliance by 16 November 2020 in relation to the disability discrimination complaints, including disclosure of medical records and an impact statement. The claimant did not comply, and the disability discrimination claims were dismissed under Rule 38.

At the second preliminary hearing on 2 February 2021 the tribunal noted that the impairment relied on was cancer and that the claimant would be deemed disabled, so the earlier orders about medical evidence were not necessary for the disability-status issue. Written Rule 38 notice was then sent on 8 February 2021, and the claimant applied the same day to have the dismissal set aside. The respondent opposed the application on the basis of serious default, delay, and prejudice, but accepted that a fair trial was probably still possible.

Applying Rule 38 and the Rule 2 overriding objective, the tribunal held that the default was serious and that no satisfactory explanation had been put forward, while acknowledging the claimant's difficulties and the role of her lay representative. It also found that, because the claimant was relying on cancer as a deemed disability, there was no real prejudice to the respondent on the merits of the disability discrimination complaints and that a fair trial remained possible. Relief from sanction was therefore granted and the disability discrimination claims were permitted to proceed; the unfair dismissal claim was not the subject of this application.