C Willsher v Reed Specialist Recruitment Ltd: 3304714/2024
JUDGMENT
[1]The claim is not struck out.REASONS
[1]The respondent sought strike out of the claimant’s entire claim on the grounds that she had failed to comply with my order of 5 June 2025 and/or because the claim is not actively being pursued.[2]On 14 November 2024 EJ Yardley made orders for the claimant to provide medical records, a disability impact statement, a schedule of loss and particularisation of her discrimination claim. The claimant did not comply with the orders. She requested a postponement of a further preliminary hearing listed for 21 January 2025 and an extension of time to comply with the orders due to ill health. A postponement was granted on 14 January 2025, and an extension was granted on 14 February 2025. The claimant did not comply with the amended order.[3]At a hearing on 5 June 2025, I declined to consider striking out the claim where the claimant was clearly unwell and distressed. At that time, I ordered that she provide nothing other than medical evidence of her ill health over the preceding five months and a prognosis, so that the tribunal could understand whether and how the claimant could pursue the claim.[4]The claimant failed to comply with that order by the specified date of 29 August 2025. She did not seek an extension in advance or contact the respondent in advance. She engaged in email correspondence with the respondent mid-September 2025 in which she suggested she share a draft of what she was going to put to the tribunal, with the respondent. Ms Smith, understandably, declined to see a draft and told the claimant she should contact the tribunal.[5]The claimant sent three lengthy emails to the tribunal and the respondent after 9 pm last night and early this morning. The emails did in part comply with the orders made on 5 June 2025.[6]Ms Smith said, in summary, that the claim should be struck out as the claimant had failed to comply with the order of 5 June 2025. She said this was part of a pattern. The claimant only acted as a hearing approached. Orders were made in January 2025 which had yet to be complied with and meanwhile the facts of the case became more historic. The respondent was prejudiced by the amount of time it was having to put into managing this claim which was not progressing. The claimant wanted an adjustment which would allow her to treat deadlines flexibly, and this was unworkable, as well as prejudicial to the respondent.[7]The claimant said that she had been due to have surgery on 18 July 2025, and this had been delayed until 1 August 2025. The surgery was meant to be straightforward but there were major complications which necessitated her taking very strong painkillers for a number of weeks and she was unable to work on the claim. The claimant also suffers from PTSD and has been dealing with safeguarding issues around her child. She had not understood that she was taking the wrong approach when she contacted Ms Smith in September. The claimant said that she had found a solicitor and would be instructing the solicitor immediately if her claim was not struck out. She said that she was in a much better state of mind than she had been in June and could send reports from a child in need assessment to evidence that her coping strategies and wellness had been assessed as improved by social workers in the last week.[8]Under rule 38 of the Employment Tribunal Rules of Procedure 2024:(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)… (b)… (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) …[9]While I accept that the respondent has incurred costs as a result of having to attend three preliminary hearings and deal with voluminous correspondence, and that it has valid concerns that this may continue, it is my view that the claimant has actively pursued the claim to the best of her ability and that she is in an improved state of mind compared to her presentation at the hearing on 5 June 2025. She has taken the positive step of obtaining legal representation. The information she provided overnight is late but does indicate that she was unable to comply with EJ Yardley’s orders during January to June 2025, and she has provided an explanation for her further failures to comply since that time. While no clinical prognosis has been provided, the claimant has stated that she is much recovered and seemed to be so. It is my view that strike out is not appropriate at this stage and the respondent’s application is refused. Approved by: