Mr S Burnett v Malcolm Allan Limited — 2021

This was a telephone preliminary hearing on the second respondent's applications for strike out, or alternatively a deposit order, in relation to the claimant's disability discrimination complaint. No evidence was heard. The claimant was an agency worker registered with DC Recruitment Ltd and supplied to Malcolm Allan Ltd. He said he had a disability within section 6 of the Equality Act 2010, namely depression and anxiety. The first respondent accepted disability, while the second respondent denied it. The claimant's case was that the second respondent failed to respond properly to his attempts at contact and failed to liaise with the first respondent about adjustments that he said would have allowed him to return to work, including moving him off a wrapping machine, changing his rota, and starting him later.

The second respondent submitted that the claim was confused, pointed to an apparent inconsistency between the claim form and later emails about whether there had been contact, and argued that any further engagement would not have made a difference. The tribunal applied the high threshold for strike out under Rule 37, noting the authorities it cited on the approach to discrimination claims, including the need for caution where there is a core body of disputed fact. It held that the material relied on by the second respondent did not conclusively disprove the claim or show that it was totally and inexplicably inconsistent with undisputed contemporaneous documents. The tribunal also considered that the claimant was a party litigant and that the claim was sufficiently identified to proceed to evidence, even if further specification might later be needed.

On the alternative application for a deposit order under Rule 39, the tribunal found that it could not conclude that the claim had little reasonable prospect of success. It also took account of the claimant's financial position, finding that he had about £80 per month for necessities and that a deposit might prevent the claim from being heard at all. Both applications were refused. The judgment ended by noting that the parties had agreed that a further case management preliminary hearing should be arranged, and that the final hearing dates were still to be fixed.