Not present For the v Norse Commercial Services Limited — 2022

Mr Murrell's disability discrimination claim was before Employment Judge Postle on the respondent's application to strike out. The respondent said the first claim, presented on 29 September 2021, did not identify with sufficient clarity the disability or disabilities relied on, and that the claimant had not provided the medical information and GP records ordered by Employment Judges M Warren, Postle, and Craft. The tribunal recorded earlier case management orders made on 3 March 2022 and 4 October 2022 requiring further particulars and disclosure.

Both sides made written submissions on Rule 37 strike out and the overriding objective. The respondent argued that the claimant's and his solicitors' conduct had been unreasonable because of repeated non-compliance with the orders. The claimant said he had tried to obtain the records, that delays were connected with moving house, GP delays, and staffing problems, and that the information eventually provided was sufficient to show that his conditions cumulatively met the definition of disability.

In reasons dated 16 August 2023 and sent on 22 August 2023, the tribunal declined to strike out the claim. It accepted that there had been repeated breaches of orders and that some of the correspondence from the claimant's solicitors was unhelpful, but it also took account of the claimant's apparent vulnerability and the difficulties in obtaining medical records during and after the pandemic. The tribunal was not persuaded that the non-compliance was intentional, held that strike out would be disproportionate and not in the interests of justice, and warned that any further failure to comply with orders could lead to strike out and a costs order. Costs were left to be revisited after the full merits hearing.