Mr Leon Dyer v Islington Council — 2021

At an open preliminary hearing on 19 April 2021 before Employment Judge Alliott sitting alone, the claimant withdrew his race discrimination claim after telling the tribunal that he had concluded he was not discriminated against because of his race. The tribunal therefore dismissed that claim upon withdrawal and made no strike out or deposit order.

The hearing was listed to decide whether the remaining disability claim should be struck out or made subject to a deposit order. The claimant had been employed by the respondent from April 2009 and was dismissed with immediate effect on 4 February 2020 after a capability hearing. He relied on mental health/depression and lower back pain. The judge held there was no reasonable prospect of establishing disability on the basis of low back pain because it had not lasted, and was not likely to last, 12 months. By contrast, depression was arguable as a mental impairment lasting more than 12 months, and the claimant described disturbed sleep, difficulty waking, and the effect of memories; the tribunal therefore did not conclude that he had no or little reasonable prospect of showing disability.

On the pleaded case, the judge identified the claim as one under s.15 Equality Act 2010, with sickness absence in 2017/2018 as the something arising and dismissal as the unfavourable treatment. The tribunal therefore refused strike out and did not make a deposit order. The claimant was also told that if he wished to pursue unfair dismissal he would need to apply to amend and explain why it had not been brought in time.