A Hylton v FAE Ventures Ltd (T/a FAE Group): 2207869/2022
JUDGMENT
The Claimant’s disability discrimination claims are struck out.REASONS
The Tribunal's Case Management Order dated 29 March 2023 required that Claimant by 25/4/23 serve upon the Respondent a signed and dated impact statement which set out the following details: Exactly what impairments/s is are relied upon; When it started; How long it did or has lasted;[4]What if any effect it had at the relevant time (i.e. the times of the events complained about in the claims) on her ability to do day-to-day activities;[5]What if any, medication or other treatment she has had for it; and[6]What the impact of the impairment on her ability to perform day-to-day activities would have been if she had not had such treatment. Following the making of an Unless Order on 12/5/23, the Claimant has served a second impact statement providing information in relation to 1-3 and 5 above, but has still not provided any information about the claimed effect of the Claimant's condition on her ability to undertake specific normal day-to-day activities at the time of the events complained of, or at all. It also fails to deal at all with her ability to undertake day-to-day activities if she had not received treatment. For example, paragraph 11.1 the Claimant states "I find myself completely wiped out from doing things that most people would not have an issue with". However, she fails to specify the type of "normal day-to-day activities" that are affected. Similarly, at paragraph 11.25 the Claimant says "The simplest of tasks require a lot more effort and energy", but does not go further than this in describing how her ability to undertake normal day-to-day activities are affected. The second impact statement is also not signed or dated as required by paragraph 5 of the CMO dated 29/3/23. The Claimant has therefore failed to fully comply with paragraph 5 of the Tribunal's case management order dated 29 March 2023 and she has breached the Unless Order dated 12 May 2023. 2207869 22[1]I reconsidered my previous strike-out judgment on my own initiative as, in the light of the judgment in Minnock v Interserve EA 2021 305 - AT, of which I became aware on 16/6/23, I concluded that the strike-out had been a disproportionate response to the Claimant’s failure to provide complete and satisfactory information about the impact of her claimed impairments.[2]The Claimant has now served a third impact statement which is an improvement on the previous two, although I largely agree with the Respondent’s continuing criticisms of its contents as per the Respondent’s Solicitors email of 13 July 23.[3]The Claimant has other claims which are to proceed to trial in any event. I have concluded that the overriding objective is best served by allowing the disability claims to proceed to trial at which point the trial Tribunal will be able to properly consider the question of the impact of the Claimant’s impairments.[4]It would seem inappropriate in the circumstances - (notable the fact that the Claimant has been ordered several times to produce a full and detailed impact statement and has now produced three) for the Claimant to be allowed at trial, if she attempts to do so, to adduce additional material which she has not to date included but which she could and should have included in her impact statements. However that will be a matter for the trial Tribunal to decide.[5]If at trial it appears that the Respondent has been put to additional unnecessary costs by the manner in which the Claimant has handled the disability issue, then, if so advised, the Respondent can make a costs application against her..[6]Both parties have agreed that I should deal with the reconsideration on the papers, and that is what I have done. 2207869 22[7]I apologise to the parties for the inconvenience. Direction: The parties are to finalise a list of issues for trial as soon as possible, and the Respondent must finalise a trial bundle by 18/8/23 so that witness statements can be exchanged by 4pm on 19/9/23. J S Burns