U Andruskiewicz (Personal Representative of the Estate of P Andruszkiewicz) v Splash Damage Ltd: 6006844/2025
EMPLOYMENT TRIBUNALS
Case No 6006844/2025
Between
U Andruskiewicz (Personal Representative of the Estate of P Andruszkiewicz)ClaimantSplash Damage LtdRespondent
Before
Employment Judge AtkinsMr T Gracka for claimantMr A Ross (instructed by Counsel) for respondentDate 31 July 2026
JUDGMENT
The judgment of the Employment Tribunal is as follows: The claims are struck out.
REASONS
[1]The Claimant claims that he was the victim of a number of discriminatory acts during his employment with the Respondent between April 2023 and November 2024.[2]The Claimant sadly passed away in 2025.[3]In the rest of these reasons, references to ‘the Claimant’ mean Mr Piotr Andruszkiewicz. I have used the present tense to refer to him for the sake of clarity only. No disrespect is intended to the deceased by doing so.[4]The issues for me to decide are the Respondent’s applications for:(a) the claims to be struck out; or(b) in the alternative, for deposit orders to be made.[5]Two other matters were disposed of by consent. First, the Claimant’s application to change the Claimant’s name to reflect the fact that the claim is now being brought by his personal representative on behalf of his estate, per section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. Second, the Claimant’s application to amend the Particulars of Claim to provide further detail and clarification of his claims. Neither application was resisted by the Respondent, and so I have made those changes in a separate Order.[6]Mr Ross also confirmed that a third matter, the Respondent’s application for an unless order, has now fallen away, and so I do not consider it. Procedure, documents, and evidence heard[7]I have seen a bundle paginated to 96 pages, Skeleton Arguments submitted by both parties, and a supplementary email from the Claimant’s representatives. Mr Gracka and Mr Ross both made oral submissions.[8]In making this decision, I have taken account of all of the evidence before me, even if I have not mentioned any specific part of it.
The claim
[9]The Claimant advances the following claims, as set out in the amended Particulars of Claim:(a) Direct disability discrimination contrary to section 13 of the Equality Act 2010 (‘the Act’). The acts of direct disability discrimination are alleged to be: (i) the refusal to grant a pattern of flexible home working; and (ii) the dismissal on 20 November 2024. The Claimant relies upon a hypothetical comparator.(b) Discrimination arising from disability contrary to section 15 of the Act. The discriminatory acts are said to be: (i) the Performance Improvement Plan of October 2024 (ii) the dismissal on 20 November 2024; and (iii) the subsequent cancellation of private medical health insurance.(c) Indirect disability discrimination contrary to section 19 of the Act. The Respondent is said to have adopted PCPs of full office attendance from September 2023, a temporary increase to a 5 day week in August and September 2024, and requiring employees who were too unwell to travel (but well enough to work from home) to take sick leave. It is claimed that these put the Claimant at a particular disadvantage compared to people who did not share the Claimant’s disabilities.(d) Failure to make reasonable adjustments contrary to section 21 of the Act. The Respondent is said to have adopted the same PCPs as set out at (c) above. The reasonable adjustments that were not made are said to include: allowing the Claimant to work from home 1 or 2 days per week, in the alternative allowing the Claimant fixed working from home day in the middle of the week, and allowing him to work from home when he was capable of work but too sick to travel.(e) Victimisation contrary to section 27 of the Act. The Claimant relies upon protected acts consisting of: his requests to work from home, his grievance of 3 September 2024, and his appeal of 11 October 2024. He says that as a result of these protected acts he suffered the following detriments: threats of performance measures and a Personal Improvement Plan, dismissal on 20 November 2024, and the subsequent cancellation of private medical health insurance.[10]The Claimant no longer advances any claim of unfair dismissal or automatic unfair dismissal.[11]The Claimant says that he has the following disabilities:(1) Chronic pain.(2) Chronic fatigue.(3) ADHD.[12]The Respondent disputes that these conditions are disabilities within the meaning of the Act.[13]The Respondent also says that they were not aware that the Claimant had the conditions as follows:(1) ADHD, until 6 November 2024;(2) Chronic fatigue, until 6 October 2025; and(3) Chronic pain, at a date after the commencement of employment which has not yet been specified.[14]The Respondent has also confirmed that, for the purposes of the applications before me today, they:(a) do not take any point about time limits under section 123 of the Act;(b) do not take any point about the chronology set out in the amended Particulars of Claim; and(c) were content to proceed on the basis that documentary evidence referred to in the amended Particulars of Claim can be disclosed and considered by the Employment Tribunal at a future substantive hearing.[15]The Respondent reserved the right to take such points as part of any subsequent amended Grounds of Response, should the claim not be struck out.[16]The Claimant’s case is set out in the amended Particulars of Claim as follows:(a) He was employed by the Respondent as a Principal AI Engineer on 18 April 2023.(b) At that time arrangements were made to allow him to work mostly from home.(c) On 24 July 2023, the Respondent notified the Claimant and its other employees that, with effect from September 2023, they must return to the office to work a 4 day week.(d) His health conditions deteriorated in August 2023.(e) On 4 October 2023 and 11 October 2023 (via an email and return to work form respectively) the Claimant notified the Respondent of his health issues.(f) On 17 April 2024 the Claimant was asked to attend a meeting about his absence. At this meeting he discussed his health conditions and requested to work from home 1 or 2 days a week.(g) The Claimant continued to discuss his health and working from home request in a 121 meeting on 5 July 2024.(h) In July 2024 the Claimant exhausted his entitlement to paid sick leave and took unpaid sick leave.(i) At around the same time the Claimant and other members of his team were told that they would need to work 5 days per week in the office during a business critical period in August and September 2024.(j) On 24 July 2024 and 1 August 2024 the Claimant requested working from home arrangements.(k) On 13 August 2024 the Claimant was granted the ability to work at home on Mondays during the business critical period.(l) On 3 September 2024 the Claimant submitted a grievance.(m) A Grievance meeting was held on 19 September 2024. On 30 September 2024 the grievance was dismissed, although the Claimant’s working from home day was switched to Wednesday for a short period. The Claimant appealed.(n) On 15 October 2024, during a return to work meeting, the Claimant was told that he would be placed on a Performance Improvement Plan. The Claimant asked for a list of the issues with his performance but none was provided.(o) On 5 November 2024 the Claimant undertook a workplace health assessment.(p) On 12 November 2024 the workplace health workplace health report confirmed a diagnosis of ADHD.(q) On 13 November 2024 the appeal hearing was held. The appeal was not successful.(r) On 20 November 2024 the Claimant’s employment was terminated for high levels of absence and poor performance. He was paid 6 weeks in lieu of notice.(s) Shortly thereafter, the Claimant’s private medical health insurance was cancelled by the Respondent.[17]I remind myself that this only a high level summary of the claim as put forward by the Claimant, and I bear in mind the possibility that some details may be disputed by the Respondent (albeit not for the purpose of these applications).[18]After bringing the claim, the Claimant sadly passed away in July 2025.[19]The Claimant did not provide any disability impact statement before he passed away. In fairness to him, I should record that no direction for him to do so was made by the Tribunal until September 2025. The law Disability
The law
[20]Disability is defined section 6(1) of 8 the Act, which reads: “A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[21]Section 6(3) of the Act makes it clear that a reference to a person who has a disability is a reference to a person with a particular disability. In the Claimant’s case this is a reference to his three conditions set out above.[22]To decide whether or not the Claimant’s conditions amount to a disability within the meaning of the Act, the Tribunal will need to apply the four stage test for assessing disability in Goodwin v The Patent Office [1999] IRLR 4, namely:(1) Does the Claimant have a mental and/or physical impairment?(2) Did that impairment affect the Claimant’s ability to carry out day to day activities?(3) Was the adverse condition substantial?(4) Was adverse condition long term?[23]I further note that:(a) When assessing the effect of the impairment upon day to day activities the Tribunal may need to deduce those effects from the evidence. In doing so it should disregard the effects of treatment or ‘but for’ measures such as counselling and therapy.(b) ‘Substantial’ means more than minor or trivial, per section 212(1) of the Act.(c) ‘Long term’ means that an impairment has lasted for more than 12 months, is likely to last for more than 12 months, or is likely to last for life, per paragraph 2(1) of Schedule 1 to the Act.(d) An impairment which ceases to have a substantial adverse effect upon day to day life is treated as continuing to have such an effect for so long as the effect is likely to recur, per paragraph 2(2) of Schedule 1 to the Act.(e) The relevant time to assess the disability is the time of the alleged discriminatory act: Cruikshank v VAW Motorcast Ltd [2002] ICR. Strike out[24]Rule 38 of the Employment Tribunal Procedure Rules 2024 (‘the Rules’) gives the Tribunal the power to strike out all or part of a claim. It says, so far as is relevant: “38.— (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) that it is scandalous or vexatious or has no reasonable prospect of success; … (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).”[25]When determining whether to strike out a claim or response the Tribunal must apply a two-stage test: HM Prison Service v Dolby [2003] IRLR 694 and Hassan v Tesco Stores Ltd UKEAT/0098/16. The Tribunal must consider:(a) firstly, whether one or more of the threshold criteria under rule 38(1) has been satisfied; and(b) secondly, whether it is appropriate in all the circumstances of the case to order strike out.[26]I note that:(a) As a general principle, striking out a claim is a draconian step and not to be ordered lightly.(b) Discrimination claims should not be struck out for having no reasonable prospects of success, except in the plainest and most obvious cases. It was a matter of public interest that tribunals should examine the merits and particular facts of discrimination claims: Anyanwu & another v South Bank Students’ Union and South Bank University [2001] IRLR 305.(c) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. The claimant's case must ordinarily be taken at its highest. If the claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out. A tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts: Ezsias and Tayside Public Transport Company Ltd [2012] IRLR 755.(d) The correct approach to the question of whether a fair trial can take place is given in Emuemukoro v Croma Vigilant (Scotland) Ltd [2021] EA2020-000006-JOJ. Choudhury P said: “18. In my judgment, Ms Hunt's submissions are to be preferred. There is nothing in any of the authorities providing support for Mr Kohanzad's proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. […] Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so. 19. I do not accept Mr Kohanzad's proposition that the power can only be triggered where a fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad's proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters.”[27]When considering whether it is appropriate in all of the circumstances to order strike out I must always seek to balance the relative prejudice to the parties and apply the overring objective set out in rule 3 of the Rules: “3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction.(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.” Deposit orders[28]The power to make deposit orders is contained in Rule 40 of the Rules: “40.—(1) 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”).(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[29]The rationale of a deposit order is to warn a claimant against pursuing claims with little merit, which may leave them open to a risk of costs should they proceed with the claim and lose on the same basis as identified as the reason for the making a deposit order.[30]I note that:(a) The test for making a deposit order is not as rigorous as the ‘no reasonable prospect of success’ test for striking out. A Tribunal has a greater leeway when considering whether or not to order a deposit than when deciding whether or not to strike out: Van Rensburg v Royal Borough of Kingston upon Thames [2007] UKEAT/0096/07.(b) The purpose of a deposit order is not to make it difficult to access justice or to affect the strike out through the back door. The tribunal is to conduct a summary assessment of the claim and not conduct a mini-trial of the facts: Hemdan v Ishmail [2017] IRLR 228. Submissions[31]Mr Ross for the Respondent’s primary argument was that there are no reasonable prospects that Claimant can establish that his health conditions amounted to a disability within the meaning of the Act. This is because:(a) There is no evidence from the Claimant. He cannot either give evidence about the impacts upon him or be cross examined about them, or upon any inconsistencies with his account.(b) The evidence from two other witnesses (the Claimant’s brother and his former colleague) is limited and based upon limited sources. Cross examination of either of these two witnesses will not provide any answers.[32]In the alternative, for the same reasons, there can be no fair trial of the issue because in the absence of the Claimant’s own evidence it is impossible for the Respondent to properly test this central plank of the Claimant’s case.[33]In response, Mr Gracka for the Claimant properly accepted that “[the Claimant’s] death creates a real evidential difficulty. The precise terms of a private and unrecorded conversation may be difficult to establish where the only surviving participant gives a contrary account and no other evidence supports [the Claimant’s] account.” Mr Gracka goes on to make the points that(1) the Claimant’s account is not the only evidence which goes to his alleged disabilities and(2) evidential weakness is not the test for strike out.[34]Mr Gracka points to a number of other potential sources of evidence that could be used to address the evidential weakness and decide the question of disability. These are set out in detail in his Skeleton Argument and include:(a) The original particulars of claim formulated by the Claimant before he passed away.(b) The evidence of Mr Paweł Andruszkiewicz, the Claimant’s brother. The Claimant’s brother is a Polish national who is resident in Germany. He has submitted a witness statement which stands in place of the disability impact statement. Mr Gracka confirmed that he would be able to give oral evidence to the Tribunal, either from the UK or via a video link from Poland (where the domestic authorities do not object to witnesses providing evidence to Tribunals in the UK).(c) A former colleague of the Claimant, Mr Barrow. He has not yet provided a witness statement but Mr Gracka confirms that he will be able to do so and also give oral evidence to the Tribunal.(d) Documentary records held by the Respondent, to be provided during disclosure. They include emails, records of return to work meetings, 121s, attendance meetings, records of disciplinary, grievance, and appeals. For the purposes of this application, I have assumed that they will be available.(e) The Claimant’s medical records. These include GP notes and records, records of medication, an Occupational Health Assessment from a previous employment in 2017 and an Occupational Health Assessment carried out during the Claimant’s employment in 2024. For the purposes of this application, I have assumed that they will also be available.[35]Mr Gracka submitted that all of these, taken together, will allow the Tribunal to make findings of fact to the relevant standard on whether or not the Claimant was disabled.[36]Mr Ross also advanced two secondary arguments:(1) In relation to the claim of direct discrimination, in that there is nothing in the pleaded argument to demonstrate that the necessary mental element was present for an act of direct discrimination to occur. On that basis, the claim of direct discrimination should be struck out.(2) In relation to the claim of victimisation, that an examination of the chronology shows that the alleged detriments cannot have been prompted by the alleged protected acts. On that basis, the claim of victimisation should be struck out.[37]Mr Gracka responded as follows:(a) The words of the statute did not explicitly require a mental element to be present. Determining whether or not any agent of the Respondent would be a matter to be determined upon considering all of the evidence.(b) The claims of victimisation were founded upon the Claimant’s disputes with his employers about home working and performance, and there is a clear chain of causation between those and the alleged acts of victimisation.
Conclusions
[38]I start by considering the applications to strike out.[39]I must be satisfied that that one or more of the threshold conditions set in rule 38(1) is present before I can consider whether it would be proportional to strike out.[40]I first consider whether there the Claimant has no reasonable prospect of success in establishing, to the appropriate standard, that his three conditions amounted to disabilities within the meaning of the Act.[41]To do so I have considered the evidence, both that which have already been provided, and that which I have assumed will be available, that might be used to establish the Claimant’s case.[42]The Claimant’s particulars of claim identify his disability but do not contain much detail about the impacts upon his day to day life. They confirm that the effect if the symptoms fluctuate (paragraph 3). They confirm that they interact with other health issues in that they are increased by stress (paragraph 3) and a long commute (paragraph 7) and reduce the Claimant’s resilience to other illness (paragraph 3). They make the Claimant tired (paragraph 7, 17) and in pain (paragraph 24). No further details are given.[43]The witness statement from the Claimant’s brother records a number of ways in which the Claimant’s conditions manifest, including:(a) Difficulty sleeping (paragraph 3).(b) Difficulty getting up (paragraph 3, 10).(c) Sleeping longer (paragraph 4)(d) Tiredness (paragraph 3).(e) Trouble with concentration, (paragraph 3, 4, 5).(f) Pain (paragraph 3, 4, 5).(g) Inability to shop for groceries (paragraph 5).(h) Inbility to join social outings (paragraph 5).(i) Susceptibility to infections (paragraph 10).(j) Depression (paragraph 10). No further details of impacts are given. It is possible that further details may be able to be ascertained in oral evidence.[44]The Claimant’s brother’s knowledge is necessarily incomplete. He says that he chatted regularly, several times per work, with the Claimant via Discord. I have not seen records of these conversations but assume that some or all of them can be made available. He also says that he spoke to his brother less frequently during calls and video calls, and saw him on trips. I do not know how frequent those interactions were and I do not think it is likely that there are any contemporaneous records of these calls and trips.[45]I have not seen any statement from Mr Barrow. I assume that he will be able to give one, that it will contain similar evidence to that given by the Claimant’s brother, but that its nature will be similarly incomplete (and that there will be less in the way of contemporaneous documents).[46]I assume that documentary records held by the Respondent will be provided following disclosure, including emails, records of return to work meetings, 121s, attendance meetings, records of disciplinary, grievance, and appeals. These may include the Claimant’s own account of his conditions and their impact. Any account is likely to be either incomplete or a snapshot.[47]I assume that the Claimant’s medical records can be provided as part of disclosure, including GP notes and records, records of medication, an Occupational Health Assessment from a previous employment in 2017 and another Occupational Health Assessment carried out in 2024 but which has not yet been shared with the Respondent. These may include the Claimant’s own account of his conditions and their impact. They may also include comments from medical professionals about the conditions and their impact upon the Claimant. While they will contain more detail, any account is likely to be either incomplete and also may be only a snapshot.[48]I also note that there is evidence which indicated that the level of impact upon the Claimant’s day to day activities did fluctuate over time. For example, the Claimant has aid that he managed to work full time without issue at a previous employer. The Claimant’s brother also indicates that the impact upon the Claimant was significantly less after the end of his employment.[49]Taken all of this together, I conclude that:(a) There is evidence which demonstrates that the Claimant’s conditions had a degree of impairment to his physical and/or mental health.(b) There is evidence which indicates that the impairment did adversely affect his ability to carry out day to day activities.(c) Taking the Claimant’s claim at its highest, there may be evidence which would enable the Tribunal to conclude that the adverse condition was substantial (rather than minor and trivial).(d) Taking the Claimant’s claim at its highest, there may be evidence which would enable the Tribunal to conclude that the adverse condition was long term (either that the impacts had or were likely to last for over 12 months, or for life, or that they were a recurring condition).[50]In these circumstances I cannot say that there is no prospect of success at trial and so the threshold condition in rule 38(1)(a) is not met. There may be enough evidence to shift the burden of proof onto the Respondent in respect of some or all of the claims.[51]I am however content that the threshold condition in rule 28(1)(e) – that it is no longer possible to have a fair hearing of the claim – is met.[52]That is because in my judgment the Respondent is unable to test or challenge the nature and extent of the physical and mental impacts of the three conditions upon the Claimant.[53]The Respondent will not be able to challenge the Claimant on when the impacts began, or ended, what effects that had on a day to day basis, or at what time during the period of employment, or how severe they were at any point, or explore how they fluctuated over time. They will not be able to explore the extent to which those impacts were caused by the three named conditions, nor how they might have been caused by other conditions that the Claimant had (such as infections or depression). Nor will they be able to put to the Claimant any contradictory information that is provided by witnesses or exists in records or otherwise test his account by cross examination. The inability to do so created a clear unfairness as the Respondent will be inevitably be fettered, to a significant degree, while making their case.[54]For example, from the details that have been disclosed so far, the Respondent will not be able to test:(a) When the Claimant had difficulty sleeping?(b) When he went to bed earlier?(c) When he got up earlier?(d) When he slept longer, or for how longer?(e) When the Claimant was tired?(f) What impacts that tiredness caused?(g) When the Claimant struggled to concentrate?(h) When the Claimant felt pain?(i) What type of pain?(j) Where that pain appeared in his body?(k) When the Claimant struggled to carry out normal activities such as shopping for groceries?(l) How badly he was affected and how soon he recovered(m) When and what infections he had?(n) What impact they had upon him or his day to day activities?(o) When he became depressed?(p) How severely?(q) What secondary impacts there were of that depression?[55]Some of this detail may be capable of being answered by evidence from other witnesses. But their evidence is limited to what Claimant told them, and potentially anything that they personally observed. But in any case neither proposed witness would be able to give more than an incomplete picture. It would also be impossible to test or reconcile any inconsistencies. So that is not an answer to the potential injustice faced by the Respondent.[56]Some of this detail may be capable of being answered by evidence from documentary and medical records. But that would still give an incomplete picture. Any inconsistencies would be impossible to reconcile. It would also be impossible to test or reconcile any inconsistencies. So that is not an answer to the potential injustice faced by the Respondent.[57]I turn to consider whether it would be proportionate, in these circumstances, to strike out the claims on the basis that it is no longer possible to have a fair hearing of the claim.[58]The central consideration will be where the balance of prejudice to the parties in the matter lies in continuing with the case or it being struck-out. This involves engaging with the alternatives and taking account of all the factors relevant to a fair trial, such as:(a) Whether there has been fault on the part of the party in question: Leeks v University College London Hospitals NHS Foundation Trust [2024] EAT 134;(b) If so, the magnitude of the default: Weir Valves v Armitage [2004] ICR 371;(c) Whether the default is the responsibility of the solicitor or the party: Armitage;(d) What disruption, unfairness or prejudice has been caused: Armitage;(e) Whether a fair hearing is still possible: Armitage;(f) Whether a lesser remedy than strike-out (such as a costs order) would be an appropriate response.(g) The implications of the different feasible courses of action, such as whether not striking out will involve undue expenditure of time and money: Emuemukoro;(h) The demands of other litigants: Emuemukoro; and(i) The finite resources of the tribunal: Emuemukoro.[59]I note the following passage from Emuemukoro, which provides guidance on how to approach the task of considering alternative courses of action: “If there are several possible responses to [on the facts of that case] unreasonable conduct, and one of those responses is ‘less drastic’ than the others in achieving the end for which the strike-out power exists, then that would probably be the only proportionate response and the others would not. There may be cases, which are likely to be rare, in which two or more possible responses are equal in terms of their efficacy in achieving the desired aim and equal in terms of any adverse consequences. However, in most cases there is likely to be only one proportionate response which would be the least drastic of the options available”.[60]While the proportionality condition for strike-out on the grounds described in parts (b), (c) and (d) of Rule 38(1) only requires there to be “a significant risk” that a fair trial could not take place, where the ground relied upon is that set out in Rule 38(1)(e), the tribunal may need to have a greater degree of confidence that a fair trial is not possible: Leeks.[61]It is possible to deal assess the relevant factors relatively swiftly:(a) There is no fault on the part of either party. So it is not necessary to estimate the seriousness of any default or allocate responsibility to it.(b) There is a serious and significant unfairness to the Respondent in forcing it to (at best) defend the claim with one hand tied behind its back and (at worst) placing it in a position where it cannot challenge the claim at all.(c) That unfairness cannot be dealt with by any other remedy. The issue of disability is central to all of the claims. It is not possible to tackle the unfairness by only striking some of them out. An unless order would be ineffective. Imposing a deposit order or a costs order would not render the proceedings any less unfair.(d) There is more than a ‘significant risk’ that there will be unfairness. The unfairness is inevitable.(e) It follows that, the unfairness being incapable of cure, a fair hearing is no longer possible.[62]I accordingly conclude that for those reasons it is not possible for a fair trial of the issue and will strike out the claims on that basis.[63]It follows that I do not need to engage with:(a) The Respondent’s two secondary arguments.(b) The Respondent’s application in the alternative to make a deposit order.(c) Any further issues of case management.