In person For the v Mr. R Powell - Solicitor — 2022

This was an open preliminary hearing before Employment Judge Heap sitting alone on 13 May 2022. The Respondent applied to strike out the claim under Rule 37 on the basis of the Claimant's non-compliance with earlier orders, lack of active pursuit, and alleged inability to have a fair hearing. The judge refused the application.

The judgment records the earlier procedural history, including orders requiring the Claimant to provide medical records and an impact statement in relation to the issue of disability. The judge accepted that the Claimant had not complied fully with those orders, but found that the non-compliance was not deliberate and was linked to his mental health. The judge also noted that the Claimant had attended hearings and had communicated with the Tribunal, even though he had not always done what was required.

On balance, the judge was not satisfied that the claim had not been actively pursued or that a fair hearing was no longer possible. The judge referred to Rule 37 of the Employment Tribunals Rules, and to Anyanwu v South Bank Student Union, Peixoto v British Telecommunications plc, and Riley v Crown Prosecution Service when explaining that strike out of discrimination claims should be approached cautiously but can be appropriate where a fair hearing is no longer possible. The Claimant was warned that this was effectively a final opportunity to comply with future orders.

The substantive disposals recorded in the judgment were that the complaint of unauthorised deductions from wages was dismissed on withdrawal, and the complaints of discrimination based on marriage or civil partnership and sexual orientation stood dismissed under Rule 38. No compensation or other monetary remedy was awarded in this decision.