E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103523/2022 (P)5 Held at Aberdeen on February 2023 Employment Judge J M Hendry Mr M MacDonald v Represented by Mrs J Coutts-MacDonald,15 Wife IKM Testing UK Ltd — 2023

The claimant brought claims for unfair dismissal and disability discrimination. The hearing on 17 February 2023 concerned the respondent's application to strike out the case after the claimant did not make himself available for the scheduled December 2022 hearing on disability status. The claimant was represented by his wife throughout, and the tribunal recorded that she had sought a postponement because of her own health difficulties while the claimant was working in Amsterdam and did not return in time for the hearing.

The tribunal accepted that the claimant and his wife had been under stress, but found it should have been clear that the claimant would have to attend and give evidence about his disability if disability status was not accepted. It held that the failure to make himself available for the arranged hearing was unreasonable for the purposes of Rule 37, and that he should have been candid with the tribunal and sought a postponement rather than take work that prevented attendance.

Applying Rule 37 and the overriding objective, and referring to authorities including Balls v Downham Market High School & College, Chandhok v Tirkey, Attorney General v Barker, Smith v Tesco Stores Ltd, Blockbuster Entertainment Ltd v James, Arrow Nominees Inc v Blackledge, and Emuemukoro v Croma Vigilant (Scotland) Ltd, the tribunal concluded that strike out was a draconian step and that a fair hearing remained possible. It treated a strike out as disproportionate in the circumstances, noted that discrimination claims should not be struck out except in very clear cases, and said the appropriate lesser course was for the respondent to apply for expenses if so advised.

The respondent's application for strike out was refused. The tribunal indicated that listing letters would be issued for a hearing on disability status or, if that point was conceded, for a full merits hearing.