N M Hosie (sitting alone) Miss Tegwen A Northam v C/o Atkins Ltd Represented by: Mr C Graham – Solicitor Mario Profeta rd and 2 others — 2017

This was a preliminary hearing on the respondents' application to strike out, or alternatively seek deposit orders for, the claims in S/4100176/17 and S/4100276/17. The tribunal noted that the pleadings were lengthy and difficult to follow, treated the claimant's averments pro veritate for the application, and recorded that the claimant's representative later sought to withdraw the complaint described as perverting the course of justice.

The tribunal held that the failure to make reasonable adjustments complaint failed because the duty was not triggered on these facts. It relied on Dr O'Donnell's 11 January 2017 occupational health report, which had access to the claimant's complete occupational health file and concluded that a return to work was remote in the short and medium term, together with the claimant's GP certification that she was unfit to return to work. It also rejected direct discrimination because no comparator was identified and no detriment was properly particularised, and rejected victimisation because there were no facts showing that the respondent's request for further medical advice was because of the First Claim or that any relevant detriment had been pleaded.

The tribunal further held that the harassment allegation did not meet the statutory test in s.26, the indirect discrimination pleading did not identify a PCP, group disadvantage, or individual disadvantage, and the s.111 and s.112 claims failed because the relationship with Health Management did not fit the statutory context and the respondents could not be shown to know that discrimination was a likely outcome of an independent medical report. The discrimination arising from disability complaint under s.15 was struck out because the refusal to allow a return to work on independent medical advice was held to be a proportionate means of achieving the legitimate aim of protecting health and safety and avoiding civil liability.

The tribunal also treated the repeated complaints from the First Claim as vexatious and struck them out as re-litigated matters. It therefore struck out both claims under Rule 37, and did not make any monetary award.