Employment Judge DunlopIn person for claimantDate 5 February 2026
JUDGMENT
[1]The claimant’s claim for a redundancy payment was brought within the time limit in s.163 Employment Rights Act 1996.[2]The claimant’s complaint of unfair dismissal was brought outside the primary time limit set out in s.111 Employment Rights Act 1996, but the Tribunal has extended time for the presentation of the claim on the grounds that it was not reasonably practicable for the claim to be presented within the primary time limit (and it was presented within such further time as was reasonable). The Tribunal therefore has jurisdiction to determine that complaint.[3]The claimant’s complaints of disability discrimination, insofar as they related to her dismissal on 8 April 2024, were brought outside the primary time limit set out in s.123 Equality Act 2010, but the Tribunal has extended time for the presentation of the claim on the grounds that it was presented within such further period as was just and equitable. The Tribunal therefore has jurisdiction to determine that complaint.[4]Limitation arguments in respect of the claimant’s complaints of disability discrimination insofar as they relate to events prior to dismissal will be determined at the final hearing.[5]The respondent’s application to strike out the complaints on the basis that some/all of them have no reasonable prospects of success is refused in respect of the following complaints:5.1 Unfair dismissal;5.2 That the claimant’s dismissal was an act of discrimination under s.15 Equality Act 2010 (discrimination arising from disability);5.3 That the respondent failed to make reasonable adjustments (as particularised in Employment Judge Batten’s List of Issues);5.4 The claim for a redundancy payment.[6]The respondent’s application for a deposit order on the basis that the complaints have little reasonable prospect of success is refused in respect of the following complaints:6.1 Unfair dismissal;6.2 That the claimant’s dismissal was an act of discrimination under s.15 Equality Act 2010 (discrimination arising from disability);6.3 That the respondent failed to make reasonable adjustments (as particularised in Employment Judge Batten’s List of Issues);6.4 The claim for a redundancy payment.[7]The respondent’s application for a strike out/deposit order in respect of the remaining complaints is adjourned, to be determined by
REASONS
[1]This was a public preliminary hearing to determine the respondent’s application to strike out the claim. The application was put on three separate bases, and I deal with each of them in turn, essentially as separate applications. Part 1: Time limits Background and findings of fact[2]The claim was presented outside the primary time limit in respect of at least some of the complaints raised. I begin by setting out a brief chronology common to all of the complaints, before dealing with them in turn.[3]The claimant commenced employment in October 2011, working at the respondent’s Liverpool store. Since 2020, the claimant has had several lengthy periods of sickness absence, as a result of a number of medical conditions including sciatica, anxiety, stress, depression and a fractured ankle. On 8 April 2024 the claimant attended a capability meeting which resulted in her dismissal with immediate effect. The parties agree that her employment terminated on that date.[4]The claimant appealed against her dismissal, unsuccessfully. That process concluded with an outcome letter issued on 2 May 2024.[5]Insofar as her claims related to the dismissal, the primary time limit expired on 7 July 2024. That means that the claimant ought to have commenced ACAS Early Conciliation by that date. Instead, she did so almost one month later on 4 August 2024. An ACAS EC certificate was issued on 9 September 2024. There is no extension of time arising out of the Early Conciliation process in circumstances where the Early Conciliation was started outside the primary time limit. The claim was presented to the Tribunal on 9 October 2024.[6]In her claim form, the claimant acknowledged that the claim was late, and said this: I was unable to bring a claim within three months period because as briefly detailed due to a complex domestic situation and following some exceptional years of trauma and bereavement I was required to remain focused on maintaining my mental wellbeing and resilience. I am willing to expand and to provide further details if required to help with context.[7]The claimant gave evidence setting out the circumstances in which she had come to present the claim late. She was cross-examined by Miss Hicks and there was some additional questioning from me. I make the following findings of fact in relation to the period between 8 April 2024 and 9 October 2024.[8]The claimant is a psychologically vulnerable person who has experienced a long-standing history of mental health difficulties. At the time of her dismissal, she was attending therapy sessions provided by TALK Liverpool Talking Therapies focused on addressing a recent diagnosis of PTSD. That course of therapy, however, was nearing an end. She had had a particular low point in February, but described herself as managing daily activities well in March, when she had started therapy and was assessed by Occupational Health.[9]The claimant also has a difficult home life. She lives with her parents and, nominally, with her brother. At the time of the dismissal her brother was in prison. His drug use and involvement with serious criminality had brought about threats both to him, in prison, and also to the family home. The claimant was living in fear of a physical attack on herself and/or the house. There was also tension in the house around the prospect of her brother’s return. The claimant tells me that the relationships within the house are characterised by domestic violence, and that she has been a victim of domestic violence. For the purposes of these proceedings, I accept that and find it to be the case. The claimant’s account appeared to me to be credible, and there is no contrary evidence before me.[10]As noted above, the claimant submitted an appeal against her dismissal and engaged in the appeal process. She managed to do so at a time when she was receiving support from the local mental health crisis team. She described ‘falling apart’ after receiving the appeal outcome in May. Things at home were very difficult, her therapy course had ended, and she was struggling to complete daily activities, such as eating, sleeping and caring for herself. The claimant approached her GP for support and her prescriptions for anti-depressant medication and beta-blockers were increased. The GP was unable to offer immediate access to further therapeutic support, and the claimant was placed on a waiting list.[11]The claimant was prompted to approach ACAS by a friend who had been a former colleague. She was able to do this in early August with the support of the friend in circumstances where she had recovered somewhat from the blow of her appeal being rejected, and where her increased medication was having some effect.[12]Through the remainer of August and September period the claimant’s brother’s release date was approaching and the probation service wanted him to return to the family home. This caused a great deal of apprehension for the claimant and her parents who feared that his drug use and criminality would bring violence and chaos into their lives. He was eventually released in September and placed in a probation house outside of the area. Initially that was okay from the claimant’s perspective, but he quickly negotiated permission to sign in with probation in Liverpool and began to visit the family home which she found very distressing.[13]Early conciliation ended on 9 September, in a conversation with ACAS around this time the claimant first became aware of the time limit to bring a claim and the fact that her claim would be presented late. She was informed that the Tribunal had a discretion to extend time and she should provide an explanation for why it was late.[14]The claimant also had difficulties with accessing the internet throughout this period due to problems with paying for her mobile phone contract and her broadband after her employment ended. Her access was intermittent. She sought help from a debt charity.[15]During the period under consideration the claimant did not obtain alternative employment. There is no evidence that she was seeking it. There is no evidence (as is sometimes the case) of the claimant doing other things in her life which are suggestive of an ability to complete the sort of tasks required to submit a claim. The claimant was, to put it bluntly, surviving.[16]She presented the claim on 9 October at a point when she felt able to do so, keeping in mind the knowledge that it was already late, and balancing her wish to focus on it with the on-going difficult situation with her brother and her home life. Redundancy[17]A claim for a redundancy payment has a six-month time limit (s.164 Employment Rights Act 1996 (“ERA”)). It has therefore been presented in time and I need not consider whether an extension should be granted. Unfair dismissal[18]It is evident from what I have set out above that this claim was presented outside the primary time limit set out in s111(2)(a) Employment Rights Act 1996 (“ERA”).[19]S111(2)(b) provides that the Tribunal can extend time for the presentation of the claim where it was “not reasonably practicable” for the claim to have been presented within the primary time period, and it was presented within such time thereafter as the Tribunal considers reasonable.[20]The “reasonably practicable” test is a strict one (in contrast with the discretion to extend time on “just and equitable” grounds which applies in some other types of claims, and is much broader). The onus of showing that it was not reasonably practicable to present the claim in time lies on the claimant.[21]Something is “reasonably practicable” if it is “reasonably feasible” (see Palmer v Southend-on-Sea Borough Council [1984] ICR 372, Court of Appeal). The question is not whether it was physically possible to present the claim in time, nor whether it was reasonable not to, rather the test lies between these two extremes.[22]In Asda Stores Ltd v Kauser EAT 0165/07 Lady Smith stated: “The relevant test is not simply a matter of looking what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.”[23]I have found this to be a finely balanced decision, it is not sufficient that a claimant has other things going on in their life which will also demand their attention (as, indeed, was the case in Kauser where the claimant was herself undergoing police investigation).[24]However, having heard Miss O’Connor’s evidence and assessed it carefully I am satisfied that she is not someone who was merely ‘stressed’ but rather was someone, being already mentally vulnerable, did ‘fall apart’ as a result of her dismissal and unsuccessful appeal to the extent where she was living day-to-day, not always able to complete the basic tasks of life, and certainly not able to do anything beyond that. Although it may have been feasible for her to start conciliation between the dismissal on 8 April and the appeal outcome of 2 May (she was after all able to pursue the appeal) I remind myself that my focus must be on the latter portions of the limitation period and I am satisfied, as I have said, that between 2 May and 7 July the claimant was simply not fit to act. This made it not reasonable practicable for her to instigate Early Conciliation of her own volition in the period up to 7 July, nor to take associated steps such as researching her rights or seeking advice. Her situation settled somewhat by early August, but, even then, she was only able to commence Early Conciliation because a friend had taken the initiative and prompted her to it.[25]In circumstances where the first part of the test is met, I must then consider whether the claim was presented within such further period as was reasonable. The claimant does not need to show that the claim was presented at the first moment that it was reasonably practicable for her to do so, rather, at this second stage, it is a broader question of reasonableness.[26]Although no formal extension of time arises from a conciliation period which is, itself, started after the primary time limit, the reality is that the claimant could not present the claim without obtaining an Early Conciliation Certificate. I do not consider that it is the place of the Tribunal to go behind what was happening in the conciliation period and suggest that a claimant is obliged to bring the conciliation period to an early close in circumstances where she is already late with her claim. The real question then, is whether the delay between 9 September and 9 October was reasonable.[27]Again, having listened to the claimant’s evidence in relation to the situation with her brother, which was coming to a head at exactly this period, I accept that that was overwhelming for her, and absorbed virtually all of her attention and energy. Taking into account everything I have set out in the findings of fact, I am satisfied that the claim was presented within such further time as was reasonable and should therefore be permitted to proceed. Disability discrimination[28]I discussed with Miss Hicks at the start of the hearing, the exact approach that the Tribunal should take in determining the time limit issue in relation to the discrimination claim in circumstances where it was clear that there was a complaint that the decision to dismiss was discriminatory, but where there may also be complaints about earlier matters which had not been clarified.[29]This preliminary hearing was listed by Employment Judge Batten at a preliminary hearing for case management on 4 September 2025. She had begun to identify the issues in the case and made case management orders aimed towards ensuring that would be complete. Unfortunately, in circumstances I describe further below, that was not achieved.[30]In relation to time limits, Employment Judge Batten has stated: The preliminary hearing shall consider the issues of: a. Whether the Tribunal has jurisdiction to hear the claim given that the claimant’s employment ended on 8 April 2024 and the claim has been presented outside of the relevant statutory time limits, in that the claimant started ACAS early conciliation on 4 August 2024;[31]That appeared to me to indicate that the intention was to determine the matters definitively as a preliminary issue, rather than on a summary basis applying the strike out test in Rule 38(1)(a).[32]I posited to Miss Hicks that it would be possible to make such a determination in relation to the dismissal complaint. To the extent that there were earlier matters, if no extension was granted for the dismissal complaint, then they would inevitably fall with it. However, if an extension was granted for the dismissal complaint, then there might be other arguments to raise in relation to earlier complaints. I explained that I did not consider that I could determine such arguments today for three related reasons(i) the ancillary complaints are not yet fully clarified(ii) determining the existence of potential continuing acts would require an assessment of the evidence which would overlap with the evidence to be heard at the final hearing and potentially trespass upon findings that the Tribunal at the final hearing may wish to make and(iii) there would be insufficient time to explore earlier acts in today’s hearings.[33]Having discussed this with Miss Hicks and explained the position to the claimant I proceeded, with the agreement of the parties, on the basis that I would substantively determine the time limit point in relation to the dismissal complaint. In the event that I decided to extend time, any time limit point that the respondent wished to make in relation to earlier acts would remain ‘live’, for determination either at a final hearing, or, potentially, on a strike-out basis at a later date.[34]The time limit for a discrimination complaint appears in s123 Equality Act 2010: (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.[35]Again, the early conciliation provisions may operate to extend the limitation period, but only where early conciliation is commenced with the primary limitation period. The discrimination complaint (as it relates to dismissal) is therefore out of time by exactly the same margin as the unfair dismissal complaint, but the test in relation to extending time is different.[36]In considering whether to extend time on a just and equitable basis, tribunals have a much broader discretion than under the test of reasonable practicability. The factors set out in British Coal Corporation v Keeble [1997] IRLR 336 may be relevant. Those include the length of, and reasons for, the delay; the extent to which cogency of evidence may be affected and the steps taken by the claimant to obtain advice. Ultimately, it is for the Tribunal to weigh up the prejudice that would result to the claimant in not allowing the claim to proceed, against the prejudice to the respondent in allowing it.[37]The fact that there is a broad discretion does not mean that claimants are safe to assume that it will always be exercised in their favour, as noted by the Court of Appeal in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434: “there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.”[38]It would be a highly unusual Judgment which reached the conclusion that a claimant succeeded on the “reasonably practicable” test but not on the “just and equitable test” but they are, nevertheless, conceptually completely different tests. It is not simply a case of the bar being set at a different level.[39]I consider firstly the length and reasons for the delay. The length is not minimal. Realistically, however, most claimants these days do not present their claim within the three-month period, rather they present it within the extended period available to them as a result of having participated in Early Conciliation. For practical purposes, there real length of delay in this case compared to where it would otherwise have been is therefore probably around 4-6 weeks, rather than three months. That is a relatively short period in the lifespan of an average discrimination claim.[40]The reasons for the delay have been explored above. For the reasons I have already given, I find they are good reasons.[41]I do not find (and the respondent does not submit) that the cogency of the evidence will be affected by this delay in any material way. 42. ‘The steps taken by the claimant to obtain advice’ is not a relevant factor in this case. The claimant did not seek advice, and it is highly unlikely that affordable advice would have been available for her to access if she had sought it. What the claimant had to do was go online and follow the information given by ACAS on their website. That is what the vast majority of claimants do, and the availability of internet resources makes the tribunal process more accessible than it was in earlier times. The claimant did not do this within the time limit for the reasons I have already set out.[43]Ultimately, I must balance the prejudice to the parties of extending time, or of not extending time. There is significant prejudice to the claimant if time is not extended as she would lose the complaint which is at the heart of her case. The respondent can point to no specific prejudice caused by the delay e.g. in terms of a witness or documentary evidence being unavailable, which would otherwise have been available (sometimes referred to as forensic prejudice). The prejudice to the respondent is simply that it must defend the claim, (as would have been the case if it had been presented in time).[44]Taking all of those factors into account, I conclude that it is just and equitable to extend time until 9 October 2024, and that the Tribunal does have jurisdiction to hear this complaint. Part 2: Merits[45]The second basis for the application was that the claim should be struck out under rule 38, on the grounds that it discloses no reasonable prospect of success. The respondent also submitted, in the alternative, that a deposit order could be made under rule 39. Both of these matters were listed for consideration today in Employment Judge Batten’s order.[46]Rule 38 Employment Tribunal Rules of Procedure 2024 sets out the circumstances where a Tribunal may strike out “all or part of a claim” on various grounds, including that it “has no reasonable prospect of success”.[47]Rule 40 deals with Deposit Orders and provides as follows: Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).[48]In considering whether to make a deposit order, the Tribunal is not restricted to a consideration of purely legal issues, and is entitled to have regard to the likelihood of a party being able to establish the factual basis of their claims, and to reach a provisional view as to the credibility of allegations being put forward.[49]It is now firmly established that neither a strike out order not a deposit order should be used as a substitute for properly analysing and clarifying the claims that the claimant seeks to bring, particularly where the claimant is a litigant in person (Cox v Adecco 2021 ICR 1307, Amber v West Yorkshire Fire and Rescue Service 2024 EAT 146).[50]Even if it is established that a allegation or argument has little reasonable prospect of success, the Tribunal retains a discretion as to whether to make a deposit order. The discretion is be exercised in accordance with the overriding objective, taking into account factors such as party costs and Tribunal resources, and the need to focus on the real issues in the case (Hemdan v Ishmail 2017 ICR 486).[51]Before considering the submissions made in support of, and against, the application, I pause to set out the extent to which the clarification of the claims has been achieved.[52]Employment Judge Batten noted that it was difficult to understand the legal complaints being made from the details contained in the claim form. After discussing the claims in detail with the claimant, she drafted a List of Issues which appared at pages 89-94 in my bundle. The claims identified were as follows:52.1 Six alleged acts of direct disability discrimination, the first act being a change in line manager in August 2023, and the final act being the dismissal.52.2 A failure to make reasonable adjustments claim relying on four separate PCPS, with a total of nine proposed adjustments.52.3 The unfair dismissal complaint (the list notes that the respondent relies on capability as a potentially fair reason and sets out the matters the Tribunal will usually consider in a capability dismissal case).52.4 The redundancy payment claim.[53]Employment Judge Batten’s case management orders provided that the claimant must, by 2 October 2025, confirm the List of Issues accurately reflect her case and provide any corrections or amendments.[54]The claimant failed to comply with that order and, subsequently, applied to postpone this hearing on health grounds (a matter which I will return to below). Very shortly before the hearing, following the refusal of the postponement application, the claimant supplied a ‘response’ the List of Issues. Unfortunately, in this document the claimant does not do what Employment Judge Batten had envisaged, and provide corrections or amendments based on Employment Judge Batten’s document. Instead, she provides an alternative document. That document is problematic in that it purports to set out the legal and factual issues in the claim, but, in fact, it does not draw on the correct tests, key items of factual information are missing, it contains a lot of points of evidence/submissions, and it is hard to follow. That is not said by way of criticism of the claimant, it is inevitably the result when self-represented litigants attempt to draft a List of Issues from scratch (whether by themselves or with the assistance of AI). It is why Employment Judges spend huge amounts of time speaking to selfrepresented claimants and attempting, in an even-handed way, to formulate their complaints in legal terms.[55]In terms of reasonable adjustments, the claim covers broadly the same ground, although Employment Judge Batten’s four PCPs are replaced with six PCPS, none of which are identical to the original ones. The claimant has removed the suggested adjustments altogether.[56]The claimant has inserted a complaint under s.15 Equality Act 2010 (discrimination arising from disability). There are five alleged acts of discrimination, including the dismissal. Miss Hicks conceded today that a s.15 claim in respect of the dismissal was properly discernable from the claim form, and had probably been omitted by Employment Judge Batten because it had been omitted by the respondent from the draft List of Issues that it prepared for the preliminary hearing.[57]The claimant has also inserted an indirect disability discrimination complaint, relying on three purported PCPS.[58]The claimant has also inserted a harassment complaint relying on three alleged instances of harassment. From what I can see, these instances are not recorded elsewhere in Employment Judge Batten’s List of Issues, nor in the claim form.[59]Part H of the claimant’s list includes the heading “Direct discrimination (if pursued)”. Underneath, there is no indication of whether the claimant is adopting the allegations recorded by Employment Judge Batten or pursuing her own. There is simply a comment about potential comparators who were offered redeployment.[60]The claimant has added a further heading “Failure to consider redeployment”. The claimant asserts that the respondent has failed to comply with internal policies on offering redeployment. That argument may well be very relevant to the unfair dismissal claim, as well as to the claim that the dismissal was discriminatory under s15 (and, possibly, s.13). However, it is not a freestanding complaint in its own right.[61]I queried with Miss Hicks whether I could sensibly determine her application for strike out/deposit order in circumstances where the claimant did not accept Employment Judge Batten’s List of Issues and had instead supplied a contradictory list. Miss Hicks’ submitted that there was no complaint captured by Employment Judge Batten, or in the claimant’s new list, or in the claim itself, which had prospects of success. On that basis, I could strike out the claim as a whole (or in the alternative, make a deposit order).[62]It is worth taking a moment to set out the factual ground that the claimant wishes to traverse in bringing her claim. That, at least, is tolerably clear from the work that has been done so far:62.1 The claimant had an absence from August to October 2023, involving an injury and a bereavement. She was initially in contact with Nicky Carlton as her line manager, but, during her absence, her line manager changed to Barry Brooks. She takes exception to this change and to the way in which Barry Brooks dealt with her.62.2 The claimant had planned bariatric bypass surgery in December 2023. Following her surgery, she was in communication with Barry Brooks to plan her return to work. She expected to return in around February 2024, but was referred to Occupational Health. The respondent’s position is that, due to pre-existing adjustments and the claimant’s position on what she could and could not do, it was difficult to identify a role for her to return into.62.3 At the end of February, the respondent announced a voluntary redundancy programme which the claimant says she was in scope for. The deadline for applying for voluntary redundancy was at the end of March.62.4 The claimant had a positive experience with occupational health, and believed that a return should be possible with adjustments. She asserts that Barry Brooks continued to ‘block’ her return.62.5 The claimant was invited to a ‘Fit to Work’ meeting by letter dated 29 March 2024. When the meeting took place, she was dismissed on capability grounds. The claimant believes that the timing of the invitation was deliberately selected to be after the deadline for redundancy volunteers, and also believes that she was moved out of her role to provide a space for potentially redundant staff from another department.[63]For completeness, I record the respondent’s position that the claimant had had huge amounts of sickness absence going back to 2020, and that there were repeated episodes where she failed to sustain a long-term return to work despite various adjustments being made. The respondent notes that the March 2024 occupational health report recommended that the claimant avoid duties which involved significant periods of standing or walking. Mr Brooks could not identify a desk-based role which the claimant could do and therefore progressed to a final hearing, at which the claimant was dismissed.[64]It seems to me that the ‘obvious’ claims arising out of these facts are the unfair dismissal claim and the claim of s.15 discrimination (discrimination arising from disability), with the “something arising” being the claimant’s absence record and/or the restrictions on her ability to undertake a role on the shop floor. These are the usual claims which arise out of a capability dismissal on ill-health grounds. I cannot say, in respect of either of those claims, that they have no reasonable prospects of success, nor, indeed, that they have little reasonable prospects of success (such that a deposit order should be made). Whilst I accept that the claimant’s absence record would appear to be extremely poor I also note that the response form makes no reference to her having received formal capability warnings, that there is an evidential dispute between the parties about the duties that she could/could not undertake, that the respondent has not really addressed the assertions the claimant makes about the redundancy process having a bearing on the decisions made and, finally, that the respondent is a very large organisation which could perhaps be expected to tolerate a higher level of absence than other organisations. Those are all points which will have to be explored in evidence. There may well be others which I have missed. The point is that this is, at its heart, a credible claim which can only be determined at a final hearing.[65]Next, there may well be a credible claim of failure to make reasonable adjustments around the respondent’s refusal to either adapt the claimant’s existing role or redeploy her to a suitable one. The Tribunal would have to resolve the factual dispute around what the actual restrictions were to the claimant performing her role, and then consider what adjustment would be reasonable. Broadly, this is captured in the details of the claim encapsulated by Employment Judge Batten. Again, I cannot say that the claim, as formulated by Employment Judge Batten has no reasonable prospect of success or little reasonable prospect of success. The Tribunal will need to consider the evidence in detail – including what was said in the occupational health reports and the evidence of the respondent as to what was and wasn’t possible in that location. The Tribunal’s assessment of the reasonable adjustments claim is likely to overlap significantly with its assessment of the unfair dismissal/s.15 claim arising out of dismissal.[66]Conversely, even taking the claimant’s case at its highest I suspect that any direct disability discrimination claim will face serious problems. Following the House of Lords decision in Malcolm v LB Lewisham [2008] IRLR 700 the correct comparator for a direct discrimination case would be someone in the same material circumstances as the claimant (i.e. someone with the same absence record and who had the same restrictions on their ability to work) who was not disabled. Generally, the reason for unfavourable treatment in disability cases will be the symptoms or effect of the disability, rather than the disability itself, and the s.15 claim will be more apt.[67]The following questions arise:(1) are the matters identified by Employment Judge Batten as allegations of direct discrimination more aptly re-labelled as s.15 allegations?(2) If so, what prospects of success do they have?(3) What about the additional matters identified by the claimant as s.15 allegations? Do they require amendments to the claim? Do they have prospects of success?[68]The other matters set out in the claimant’s document are vague e.g. “failure to follow OH and medical advice given because of her disability-related conditions” and “restrictions on duties without justification”. They all relate, however, to the sequence of events I have set out above whereby the claimant was, ostensibly, seeking to return to work in February/March/April and, she says, the respondent was putting obstacles in her path. Due to the vagueness of the allegations as currently raised it is very difficult to answer the questions I have posed and to assess their prospects of success. The same can be said for the matters identified by Employment Judge Batten under s.13, assuming they are now to be considered under s.15. This part of the claim requires further clarification.[69]The indirect disability discrimination claim (mentioned in the claimant’s new document but not previously part of the claim) has no prospects of success. The matters complained of simply do not ‘work’ as indirect discrimination claims. There is no need to strike this out as it was never part of the claim. To the extent that I was considering an amendment application, I would refuse it because the complaint is hugely out of time and has no merit.[70]The harassment claim is also new and would require an application to amend. Again, therefore, the question of strike out does not arise. In contrast to the indirect discrimination claim I cannot say, however, that it has no prospects of success and I did not receive submissions on whether the claimant should be permitted to amend her claim to include it.[71]Finally, I deal with the redundancy payment claim. As I understand it, the claimant is alleging that redundancy was the real reason for her dismissal, either because her role was directly redundant, or because she was ‘bumped’ to make way for a redeployed colleague from another department. If redundancy was the real reason for dismissal but the respondent went through a capability process instead, then the dismissal would be unfair and a basic award (calculated in the same way as a redundancy payment) would be due. For that reason, it is likely that the redundancy payment claim is academic. It seems unlikely to me that the claimant will show that redundancy was the real reason for dismissal against the backdrop of excessive absence the respondent can point to. In the absence of evidence, however, I cannot say it has no reasonable prospects of success. I would be prepared to say that it has little reasonable prospects of success, but I would not be prepared to make a deposit order as I consider that such an order will serve no purpose. The Tribunal will have to consider, in any event, the circumstances of the dismissal and the part (if any) that the surrounding redundancy situation played in the respondent’s decision-making.[72]So where does that discussion leave us? The only points that I can be sure of, are the points where I am satisfied that it would not be appropriate to strike out the complaints or to make a deposit order. Whilst some other factual parts of the claim appear weak or very weak, I am conscious that they have not been fully clarified, and that it would be premature to make a decision. For that reason, I am refusing the applications made by the respondent today, but giving them permission to renew those applications, if advised, at a further hearing following complete clarification of the claim. I will return to this point later. Part 3: Failure to actively pursue the claim/pursuing the claim in an unreasonable manner[73]This was not a matter set down for consideration by Employment Judge Batten, but was raised by Miss Hicks in view of the developments in the case since that hearing. I decided it was appropriate to allow Miss Hicks to make submissions on this point.[74]The procedural chronology is relevant here. As I have said, the claim was initially presented on 9 October 2024. It was listed, as is standard for discrimination claims, for a preliminary hearing for case management to take place on 2 May 2025. That is a 7-month delay in progressing the case which is, in current circumstances, ‘baked-in’ to the timeline of all discrimination cases due to Tribunal backlogs.[75]The respondent applied for the 2 May hearing to be converted to a public preliminary hearing to consider the limitation point, but that was refused due to the fact that the claims had not yet been clarified. The claimant applied to postpone the 2 May hearing on health grounds. That application was granted and the hearing was re-listed for 4 September 2025. This time, however, it was listed as a public preliminary hearing to consider the respondent’s applications as well as clarifying the claims. The time estimate for the hearing (following the respondent’s application to extend it) was one day.[76]The claimant attended the hearing late and unprepared to deal with the strike out application, as she had thought it was the following day. She had taken that day off work to prepare, and so was able to attend. (The hearing was by video). Employment Judge Batten converted the hearing to a private preliminary hearing to attempt to clarify the case (as explained in detail above) and deal with case management only. She listed this hearing and made the orders that I have already referred to for the claimant to confirm the List of Issues.[77]As we know, the claimant did not do so. Instead, by email dated 1 December 2025 the claimant applied to postpone this hearing on health grounds. The respondent objected to that application by email dated 2 December. Coincidentally, that application was referred to me, and I refused it on 4 December 2025.[78]The respondent relies on this history as the basis for its application under Rule 38(1)(b).[79]For a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response (see Blockbuster Entertainment Ltd v James 2006 IRLR 630, CA.)[80]In considering strike out, the Tribunal should generally consider four issues, per Burton J in Bolch v Chipman [2004] IRLR 140, EAT at [55]:(1) Whether there has been scandalous, unreasonable or vexatious conduct of the proceedings. There must be a finding that the proceedings have been conducted unreasonably, not just that a party has behaved unreasonably.(2) If so, whether a fair trial is no longer possible.(3) If so, whether strike out would be a proportionate response to the conduct in question.(4) If the claim or response is struck out, what further consequences might follow, including consideration of whether a respondent debarred from participation at the liability stage should nevertheless be permitted to appear at the remedy stage.[81]The EAT (HHJ Auerbach) has recently reviewed the authorities in this area, particularly the Bolch steps, in Bailey v Aviva Employment Services Ltd [2025] EAT 109, noting that the second and third steps may, in practice be intertwined. In the majority of cases, strike out will not be appropriate where a fair trial is still possible, although HHJ Auerbach noted that there may be some cases where a party’s conduct is so egregious that the claim (or response) ought to be struck out even if a fair trial is still possible.[82]I find that the conduct of the claimant in this case in applying for postponements is not culpable. It is unhelpful, but it reflects her genuine apprehension about the proceedings and her fragile mental health state. It is the sort of conduct which is not uncommon, and which falls to the Tribunal to manage (particularly once a pattern is observed) which has successfully happened in this case.[83]The claimant’s conduct in mistaking the date of Employment Judge Batten’s hearing is a default on her part, but it is not a serious one. The hearing was still able to proceed. Had the claimant been cynically trying to avoid the hearing, she could simply have said that she was unable to attend at all, having mistaken the date.[84]The most serious default on the part of the claimant, in my view, is her failure to engage with Employment Judge Batten’s List of Issues and provide her comments and corrections by the deadline set by the Tribunal. She could provide no real explanation for this failure, other than the fact that she had found it difficult. Whilst checking and confirming (or correcting) a List of Issues drafted by an Employment Judge may appear, to lawyers, to be a straightforward task, experience shows that employment law (and especially disability discrimination law) is complicated to the point of impenetrability from the perspective of many lay individuals. It is not unusual for the clarification of claims in such cases to require more than one preliminary hearing and for little to no progress to be made outside the hearings.[85]In those circumstances, whilst I have concerns about the claimant’s conduct, she is a long way from demonstrating a deliberate and persistent disregard for the Tribunal’s orders (Blockbuster) or engaging in egregious conduct (Bailey). That being the case, the strike out application could only succeed if I was satisfied that a fair trial is no longer possible. Miss Hicks does not go so far. She says only that a fair trial may become impossible if the delays and non-compliance continues. That may well be right, but we are not there yet, and I cannot strike out the claim now on the basis of what may well happen in the future.[86]There is a significant overlap between Rule 37(1)(b) in these circumstances and Rule 37(1)(d) which provides that a Tribunal can strike out a claim on the grounds that it has not been actively pursued. For the reasons that I have explained above, I also refuse the respondent’s application as it is put under this alternative basis. Warning to the claimant[87]Although I have refused the application to strike out, the respondent was reasonable to make it and makes the following legitimate points:87.1 The Tribunal is obliged to act in a fair and even-handed way, to both the claimant and to the respondent;87.2 Delay in this case does prejudice the respondent and, at some point, may reach a point where a fair trial is not possible. I accept that not all of the delay can be laid at the door of the claimant, and much of it is inherent in the Tribunal system, but the onus is on the claimant as much as anyone else to move matters forward and to seek to avoid delay.[88]As this case progresses, the claimant will have to do things. These things will include attending hearings, providing documents, providing a witness statement and engaging in correspondence with the respondent and the Tribunal. It is vitally important that she does these things, and does them in a timely way, otherwise the point may be reached where the Tribunal does have to give serious consideration to striking out the claim. The claimant must not take this decision as an indication that the Tribunal is sympathetic, and therefore lenient, but rather take it as an indication that she has used up several chances and must take as much care as possible not to use up any more. Conclusion and Next Steps[89]At the end of the previous hearing, I listed a further public preliminary hearing for 1 April 2025. It was unclear at the point what decision I would reach and, therefore, what that hearing would be needed for (if anything). I told the parties I would confirm that in this Judgment. I also noted that I had heard submissions on whether a deposit order should be made in principle and that if I decided a deposit order should be made then I would need to hear evidence about the claimant’s financial means. We did not have enough time to do that on 9 December 2025.[90]In view of the determinations that I have reached in this Judgment, I am going to reserve the 1 April 2025 hearing to myself. The first thing that we will do in that hearing is finalise the clarification of the claims, including dealing with any amendment applications. I am not going to require the claimant to put anything in writing prior to that hearing, because I suspect that doing so would have the effect of complicating matters rather than simplifying them. However, I do want the claimant to think about the following matters before the hearing:90.1 I have identified that the main complaints in this case are about her dismissal (unfair dismissal and s.15 discrimination). These are the complaints that potentially give rise to remedies of reinstatement/reengagement and/or significant financial compensation. The failure to make reasonable adjustments claim and redundancy payment claim compliment these main complaints and will involve similar considerations of the evidence.90.2 The claimant may wish to consider whether it is worth engaging in further procedural debates. If she simply wishes to progress the case towards a final hearing where a Tribunal will determine her complaints on the evidence, then she could consider dropping the ancillary allegations of s.13 discrimination and all claims of direct discrimination, as well as the complaints of indirect discrimination and harassment which are not currently ‘in’ the claim and would require amendment applications.[91]If the claimant does wish to pursue all of the complaints which are currently mooted, then I will have a further discussion with her to clarify the legal and factual issues. This will include determining any amendment application which arises. Once the claims have been clarified, I will consider whether it is appropriate to strike out any of the complaints, or make a deposit order, if the respondent pursues those applications. Of course, I will not revisit the question of strike out/deposit order for those matters in respect of which I have refused the respondent’s applications today.[92]If necessary, I will hear evidence from the claimant about her financial means in order to determine the deposit order application. Given my familiarity with the case I would hope to be able to complete all of this within the scope of the one day hearing. Both parties will be required to stick to a strict timetable, and can expect to be stopped from providing information which is not focused on the point which I am concerned with at that time. Case Management Order[93]In order for the Tribunal to assess the appropriate amount of any deposit order which is ultimately made, the claimant is required to send to the respondent and the Tribunal by no later than 18 March 2026:93.1 A short written statement setting out details of her current assets, income, debt and expenditure.93.2 Copies of documents to support what she says in her statement (e.g. recent bank statements, credit card statements, loan agreements, payslips etc). Detailed information as to day-to-day spending may be redacted (blanked out).[94]The claimant need not provide this information if she does not wish the Tribunal to reduce the amount of any deposit order due to her having limited financial means. (The maximum sum which can be ordered is £1,000, although more than one order can be made in respect of different complaints/allegations). If she is not providing information for this reason, the claimant must still write to the respondent and the Tribunal by no later than 18 March 2026 to say so. Approved by: