Cases2402169/2021

Claimant v Y

5 January 2025Before Employment Judge McDonaldManchesterremote video

Outcome

Claimant fails

Individual claims

Direct Discrimination(sex)struck out

Claim struck out for non-compliance with tribunal orders. Claimant failed to exchange witness statements by the ordered date despite multiple extensions. Tribunal found that while the failure was due to the claimant's mental health issues and not deliberate, a fair hearing was no longer possible given the significant delay, the passage of time since the alleged incidents (4-5 years), and the significant risk of further postponements.

Harassment(sex)struck out

Claim struck out for non-compliance with tribunal orders. Tribunal found that even with reasonable adjustments for the claimant's mental health disabilities, there was a significant risk that a fair hearing could not take place within a reasonable time, and that witnesses' memories would have faded given the passage of time since incidents dating back to October 2019.

Direct Discrimination(sexual orientation)struck out

One allegation concerned sexual harassment (conduct of a sexual nature). Claim struck out on the same basis as other claims: non-compliance with orders and impossibility of a fair hearing due to the claimant's ongoing mental health issues preventing her from completing witness statements or participating in hearings.

Victimisationstruck out

Three incidents alleged to be victimisation following protected acts (grievance raised 15 October 2020 and cease and desist notice 9 November 2020). Struck out on same basis as other claims for non-compliance and impossibility of fair hearing.

Facts

Claimant employed by respondent September 2019 to February 2021 in telemarketing role. Brought claims of sex discrimination, harassment (including sexual harassment) and victimisation relating to incidents between October 2019 and February 2021, primarily concerning treatment by male manager 'S'. Resigned alleging constructive dismissal. Claimant suffered significant mental health issues (depression, anxiety, PTSD-like symptoms) which she said arose from the alleged discrimination. Case had protracted procedural history with multiple postponements due to claimant's mental health. Claimant failed to exchange witness statements by ordered deadline of 17 January 2024 despite extensions.

Decision

Tribunal struck out the claim under rule 37(1)(c) for non-compliance with orders. Judge found that while the claimant's failure was due to mental health issues rather than deliberate disobedience, a fair hearing was no longer possible. Any future hearing would be 4-5 years after the alleged incidents, witnesses' memories would have faded, and there was significant risk of further postponements. Strike out was proportionate despite claimant's Article 6 rights and tribunal's duties to disabled parties.

Practical note

Even where non-compliance with tribunal orders is caused by genuine mental health issues rather than deliberate default, a claim may be struck out where the passage of time and ongoing incapacity mean a fair hearing is no longer possible and there is no realistic prospect of improvement within a reasonable time.

Legal authorities cited

Bolch v Chipman [2004] IRLR 140Leeks v University College London Hospitals NHS Foundation Trust [2024] EAT 134Emuemokoro v Croma Vigiliant [2022] ICR 327Rackham v NHS Professionals Limited UKEAT/0110/15J v K [2019] IRLR 723Kilraine v London Borough of Wandsworth [2018] ICR 1850Serco Ltd v Wells [2016] ICR 768Riley v Crown Prosecution Service [2013] IRLR 966Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371James v Blockbuster Entertainment Ltd [2006] IRLR 630

Statutes

Equality Act 2010 s.26Equality Act 2010 s.13ECHR Article 6Employment Tribunal Rules 2013 rule 50Employment Tribunal Rules 2013 rule 30AEmployment Tribunal Rules 2013 rule 29Employment Tribunal Rules 2013 rule 37Equality Act 2010 s.27

Case details

Case number
2402169/2021
Decision date
5 January 2025
Hearing type
strike out
Hearing days
1
Classification
procedural

Respondent

Name
Y
Sector
Represented
Yes
Rep type
barrister

Employment details

Role
telemarketing role
Service
1 years

Claimant representation

Represented
No