ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105110/2016 Preliminary Hearing at Edinburgh on August 2017 Employment Judge: M A Macleod Lukasz Domagala v XPO Supply Chain UK Limited — 2017

This was a preliminary hearing on the respondent's application under Rule 37 of the Employment Tribunals (Rules of Procedure) 2013 to strike out the claimant's disability discrimination claim, or failing that for a deposit order under Rule 39. The respondent relied on the claimant's alleged failure to provide adequate responses to tribunal orders requiring details of the alleged disability, its impact, medical evidence, and the factual basis of alleged disability discrimination, including direct discrimination, discrimination arising from disability, and failure to make reasonable adjustments.

The tribunal declined to strike out the claim on the grounds that the claimant had conducted the proceedings unreasonably, had failed to comply with tribunal orders, or had failed actively to pursue the claim. It found that the claimant had responded to the orders, had provided GP records to the respondent, and had attempted to provide what was required despite being unrepresented, having limited English, and requiring an interpreter.

The tribunal struck out the disability discrimination claim because it had no reasonable prospects of success. The claimant's claim depended on showing that he met the definition of disability in section 6 of the Equality Act 2010. The tribunal found that, even on the claimant's own account, the information he had provided did not support that submission; he accepted that he had not spoken to his doctor about his disability, and the medical records contained no reference to it. The tribunal concluded that there was no basis on which a tribunal could find that he met the statutory definition.

The unfair dismissal claim was not struck out and was not determined on its merits. The tribunal held that the previous orders were directed at obtaining details and the basis of the discrimination claim, and did not address the freestanding unfair dismissal claim. It ordered that the unfair dismissal claim alone should be listed for a hearing on the merits. No remedy was awarded in this judgment.