ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Case No: 4102016/2017 Issued Following Open Preliminary Hearing Held at Edinburgh on February 2019 Employment Judge J G d’Inverno, QVRM, TD, VR, WS Miss B Robinson v Fife Health Board — 2019

At the open preliminary hearing on 21 February 2019, the respondent applied to strike out all or any of the discrimination complaints for non-compliance with tribunal orders and on the basis that they had no reasonable prospect of success. In the alternative, it asked that only a restricted harassment complaint and the constructive dismissal claim be allowed to proceed, and it also sought a deposit order. The tribunal reviewed the earlier case management history, including the claimant's repeated attempts to provide further particulars.

The tribunal held that the documents tendered by the claimant were not compliant with its orders and had not been received as further particulars of claim, so they did not become part of the pleadings. However, on balance, it was not prepared to conclude that the claimant had deliberately flouted the tribunal's orders, and it therefore refused to strike out the disability discrimination complaint on that ground.

The tribunal found that the only discrimination complaint sufficiently identified on the face of the ET1 was the complaint at paragraph 44 and the related bullet point on page 8. It construed that complaint as a section 26 Equality Act 2010 harassment claim arising from the Occupational Health referral of 13 April 2017 and the related wording in the report. The general and unparticularised averments in the first two sentences on page 8 were not remitted to final hearing.

The tribunal directed that the constructive unfair dismissal complaint under sections 95(1)(c) and 98 ERA 1996, together with the restricted harassment complaint, proceed to final hearing. It refused a deposit order because the restricted discrimination complaint did not, at that stage, appear to have little reasonable prospect of success. The judge also directed that the final hearing should be before a different Employment Judge.