In person For the v Respondent — 2025

At the open preliminary hearing on 5 September 2025, Employment Judge Wyeth refused the respondent’s application to strike out the claim for non-pursuit under rule 38(1)(d) of the ET Rules 2024. The judge accepted that the claimant had not advanced the case as required by earlier orders and had not previously produced medical evidence explaining non-compliance, but was not satisfied that the delay was inordinate and inexcusable in the sense required to create a substantial risk that a fair hearing was impossible or would cause serious prejudice to the respondent. The respondent confirmed that disclosure was substantially complete and that its key witnesses were still employed and available, and the tribunal considered that the case was ready for trial once the final bundle and witness statements were completed.

The judge also refused the respondent’s later application to strike out, or alternatively seek a deposit order in relation to, the race discrimination complaints identified in EJ Dick’s case management order. The respondent argued that the claimant had vacillated about her protected characteristic and that her asserted East African Indian ethnicity was not a recognised ethnic group, referring to Mandla v Dowell Lee. The tribunal did not accept that the issue could properly be resolved without evidence, and noted that some allegations in the list of issues were not dependent on the asserted protected characteristic at all.

In considering whether to order a deposit, the tribunal recorded that the claimant had initially described herself as British Asian but later advanced East African Indian heritage as her ethnicity. The claimant also said that KP had not known of that ethnicity until around January 2021, and that she did not consider BD’s conduct to have been because of that ethnicity, but rather because he sided with KP. The judge said that could undermine direct discrimination allegations, but would not necessarily preclude harassment. A deposit order was declined, in part because the judge was concerned about trespassing on an earlier decision by EJ Dick and because the issues were better determined on evidence. The claim therefore remained live for trial.