No attendance or v Respondent — 2019

At the preliminary hearing on 10 December 2020, the claimant did not attend and was not represented. The tribunal recorded that she had been sent the hearing order, had replied to it, and had been telephoned shortly before the hearing, but gave no assurance that she would take part. The case was described as one of disability discrimination only. The respondent accepted that the claimant met the s.6 Equality Act definition of disability by reason of dyslexia, but there was dispute about other impairments, reasonable adjustments, and the pleaded issues.

The judge recorded a long sequence of correspondence in which the claimant said she would not attend or participate meaningfully unless certain conditions were met, including revisiting earlier case management decisions, reversing the burden of proof, and using procedures the tribunal had no power to adopt. The tribunal concluded that there was no prospect of the claimant attending or participating in the March 2021 hearing, and that the conditions she sought to impose could not be accommodated consistently with the tribunal's rules and the overriding objective.

Applying Rule 37, the tribunal held that the claim had no reasonable prospect of success because the claimant's oral evidence and cross-examination were essential to issues including disability status, the respondent's knowledge, disadvantage, reasonable adjustments, direct discrimination and harassment. It also found that the case could not be fairly tried without her participation. The judge rejected the submission that the claimant's language alone amounted to unreasonable conduct, but found that her approach to the litigation, including repeated attempts to re-open concluded matters and her refusal to proceed within the structure of the case, amounted to unreasonable conduct and/or a failure actively to pursue the claim. The claim was therefore struck out under Rule 37(1)(a), (b), (d) and (e).