Miss S D Clay v Leicestershire Partnerships NHS Trust — 2022

The respondent applied to strike out the claimant's claim after the original trial window had been vacated because the claimant had not engaged with preparation. The tribunal recorded that the claimant had been dismissed on 7 January 2021 following an investigation into alleged alcohol consumption at work and her actions during the early part of that investigation. It also accepted that, during late 2021 and early 2022, the claimant had serious mental health difficulties, had attempted suicide, had seizures and physical injuries, and had a fit note in March 2022 stating that she was unfit to work because of stress, depression, anxiety and recent seizures.

Applying Rule 37 and the overriding objective, and referring to authorities including Baber, Weir Valves, Ridsdill and Emuemukoro, the judge held that the claimant had failed to comply with orders and that a fair hearing could not be held within the abandoned trial window, so the power to strike out was engaged. However, the judge accepted the claimant's evidence that correspondence sent on 22 and 30 March 2022 had not actually been opened until 27 April 2022, and found that her non-engagement arose from illness rather than an intention to abandon the claim.

The tribunal refused to strike out the claim because that would be disproportionate. It held that a lesser sanction was available, namely compliance with the existing directions and the possibility of unless orders if she did not do so. The respondent's arguments about cost, delay and the retirement of a disciplinary panel witness were not enough to justify strike out. The judgment did not determine the merits of the underlying claims or any remedy, and the claims were allowed to continue.