M Newell v Solicitors Regulation Authority Ltd: 6006861/2025
EMPLOYMENT TRIBUNALS
Case No 6006861/2025
Between
Marcus NewellClaimantSolicitors Regulation Authority Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge GidneyIn person for claimantCraig Ludlow (instructed by Counsel) for respondentDate 5 January 2026
REASONS
[1]This matter was listed by me on 20th August 2025 to determine the following questions: 2 of 12 1.1. Whether the Claimant has sufficiently particularised his claim of disability discrimination such that it can be understood and properly responded to by the Respondent; 1.2. Whether the Claimant should be required to show cause why his claim should not be struck out on the grounds that, as currently drafted, it cannot reasonably be responded to; 1.3. And/or whether the Tribunal should make an Unless Order for the provision of better particulars of the Claim; 1.4. And/or whether the Claim should be struck out on the grounds that, as currently drafted, it cannot reasonably be responded to. 1.5. If the Claim proceeds, further case management. The factual and procedural history.[2]On 28th February 2025 the Claimant presented (via the ‘tick box’ facility at box8.1 of his ET1 Claim Form) a single claim of disability discrimination against the Respondent. The relevant detail in box8.2 of the same form was very brief and stated: ‘I have not been formally diagnosed, but I identify as someone with [neurodiversity] traits. … As a result of my performance, my probation was extended twice, which ultimately resulted in me being dismissed from the business following a performance review hearing which I attended via Teams on 30th January 2025.’[3]The abovementioned formulation of the Claimant’s Claim does not(i) identify which type of disability discrimination claim he has presented, and(ii) state or describe how the operation of the Respondent’s probation scheme and/or the Claimant’s dismissal amounted to disability discrimination.[4]On 3rd April 2025 the Tribunal sent out a Notice of Hearing for Case Management on 20th August 2025. 3 of 12[5]On 28th April 2025, by its Grounds of Resistance, the Respondent made the point that the Claimant’s Claim lacked sufficient detail to enable it to be fairly defended. At paragraph 10 it requested further particulars of the Claimant’s claim. No such further particularisation had been received from the Claimant.[6]On 18th July 2025 Legal Officer Singh ordered the Claimant to provide an Impact Statement and his medical records and reports for the purposes of establishing that he suffered from a neurodiverse condition and that it satisfied the legal definition of disability, pursuant to s6 Equality Act 2010 (‘EqA’).[7]On 31st July 2025 the Claimant applied to postpone the case management hearing listed for 20th August, stating ‘I'm unable to attend the preliminary hearing scheduled for 20th August as I will be on vacation. Please could you confirm that you received my e-mail and advise availability for the next few weeks after? Thanks Marcus’. On 11th August 2025 the Tribunal wrote to the parties stating, ‘At present, the case remains listed for hearing, therefore, it is essential that you continue to prepare for the hearing in the event that the postponement application is denied’. On 13th August 2025 the Respondent objected to the postponement application. On 19th August 2025 I refused the Claimant’s application to postpone, stating ‘The hearing has been listed since 3rd April 2025. The Claimant applied on 31st July without(i) explanation why the application was being made so late,(ii) proof of when the holiday was booked, or(iii) explanation why the Claimant could not dial in whilst on vacation’.[8]The Claimant did not attend the case management hearing listed for 20th August 2025. No explanation has been provided as to why not. It would appear that, having sought a postponement the Claimant simply failed to attend when it was refused. The Respondent and the Tribunal were no nearer understanding the case that the Claimant has presented, by reason of his non-attendance on that occasion. In the circumstances I made the following Orders for the future progression of this case: ‘By no later than 4.30pm on 29th August 2025 the Claimant shall: 4 of 12 1. Identify the neurodiverse condition (‘the Condition’) that the Claimant asserts has disabled him; 2. As previously ordered by Legal Officer Singh, provide an impact statement which sets out the impact that the Condition has had on the Claimant’s ability to carry out normal day-to-day activities; 3. As previously ordered by Legal Officer Singh, provide all GP records and medical reports which support his assertion that he is disabled by the Condition. 4. Identify the type of disability discrimination claim that he has presented; 5. Provide Further & Better Particulars of that claim, stating when discrimination occurred, how (with reference to the legal definition of the disability claim relied on) and who the alleged discriminator is.’[9]On 5th September 2025, in breach of my order by 1 week, the Claimant provided some FBPs of his claim, namely that the disability he relied on was autism. He said that this placed him at a disadvantage because he took longer to absorb information and would need clarification from others that he was right, even when he was confident he had the right answer. He clarified that he had presented a s20-21 EqA claim that the Respondent had failed to make reasonable adjustments in that it should have provided additional assistance to him when it was required. On 5th September 2025 the Claimant also provided a partial record of his GP records. Those records did make reference to his dermatitis (eczema) but made no reference to autism or indeed any neurodiverse condition. No impact statement was provided and no medical reports.[10]On 18th September 2025 the Respondent wrote to the Claimant to assert that his original claim form was insufficient and could not properly be responded to, and that his FBPs had been provided outside of the time limit allowed. It went on to make two further points,(i) that the Claimant still had not complied with the Order to provide FBPs of his condition, and(ii) still had not provided adequate particulars of his s20-21 EqA failure to make reasonable adjustments claim. The Respondent wrote to the Tribunal on 29th September 2025 in similar 5 of 12 terms, this time seeking an Order striking out the Claimant’s claim on the grounds of the Claimant’s ongoing failure to comply with the case management directions and that the claim has no reasonable prospects of success.[11]On 11th December 2025 the Claimant did provide the Respondent with an undated diagnosis of autism. It had been prepared by Dr Greg Smith, Clinical Psychologist, with the Outpatient Services department of St Andrews Healthcare. It said: ‘To whom it may concern. Marcus Newell was assessed for Autism Spectrum Disorder ASD on 10th November 2025 and met the full criteria for a diagnosis of ASD as outlined in the ICD 11. It has also been recommended that Marcus be assessed for ADHD. Autism is a lifelong neurological development condition which affects how people communicate and interact with the world. Autism is a spectrum condition which effects people in different ways, with all individuals having their own strengths and differences. There are also common characteristics, many of which need to be present for a diagnosis. With the consideration of all the information gathered from primary and secondary sources and the observation assessment, Marcus’ differences are persistent and pervasive across contexts and therefore meet the threshold for an ASD diagnosis. May we wish Marcus the best of luck for the future.’[12]To date, no impact statement has been provided, and no other medical reports.[13]In his submissions to the Tribunal on behalf of the Respondent, Mr Ludlow of Counsel recited the Claimant’s various procedural defaults. He asserted that if the Claimant did not get a diagnosis of Autism until November 2025, the Respondent could have had no knowledge of the condition when it dismissed him in February 2025. He asserted that key medical information was still missing and that the necessary component parts of a s20-21 reasonable adjustments claim still remained outstanding. He did candidly accept that his witnesses were available and that he could not currently assert that a fair trial would not longer be possible, subject to clarifying who the Claimant asserts he told of his disability, in case they were not available. 6 of 12[14]In his submissions the Claimant says he told Adrain Mckeown when he started with the Respondent and Sam Chilvers at the 2nd probationary review that he considered himself to have autism, even though it had not been formally diagnosed at the time. He told me that he had both an impact statement and a 15 page medical report into his autism diagnosis that he had not disclosed. The Claimant remained confused and unable to clearly articulate a his s20-21 EqA failure to make reasonable adjustments claim. At one point he said the probationary review was only affected by his dermatitis (not relied on as a disability) and at another he said he needed more time and more support. The Law.[15]The legal analysis on considering strike out is as follows: For the purposes of this case, the relevant provisions within Rule 37 of the Employment Tribunal Rules of Procedure 2024 (“ET Rules”) provides: 37. (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) non-compliance with any of the Rules or with an Order of the Tribunal; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).[16]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. In considering whether a claim should be struck out on the grounds of scandalous, unreasonable or vexatious conduct, a tribunal must consider whether a fair trial is still possible: De Keyser Ltd v Wilson [2001] 7 of 12 IRLR 324, EAT. In Bolch v Chipman 2004 IRLR 140, the EAT set out the steps that a tribunal must ordinarily take when determining whether to make a strike-out order:(a) before making a striking-out order … an Employment Judge must find that a party or his or her representative has behaved scandalously, unreasonably or vexatiously when conducting the proceedings;(b) once such a finding has been made, he or she must consider whether a fair trial is still possible, as, save in exceptional circumstances, a striking-out order is not regarded simply as a punishment.(c) If a fair trial is still possible, the case should be permitted to proceed. Even if a fair trial is unachievable, the Tribunal will need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty, for example, by making a costs or preparation order against the party concerned rather than striking out his or her claim or response.[17]In Blockbuster Entertainment Ltd v James [2006] IRLR 630, CA, the Court of Appeal noted that the courts and tribunals must be open to the difficult as well as to the compliant so long as they do not conduct their cases unreasonably. In considering whether a case has been conducted unreasonably, a Tribunal should bear in mind that the time to deal with persistent or deliberate failures to comply with rules or orders is when they have reached the point of no return. The Tribunal should set out why a strikeout was the only proportionate and fair course to take.[18]The question of proportionality must address whether there is a less drastic means to an end for which the strike-out power exists. That answer must take account of the duration and character of the unreasonable conduct in question. Where there has been noncompliance with a Tribunal order, the guiding consideration is the overriding objective. This requires the Tribunal to consider all of the circumstances, including the magnitude of the default, the disruption, unfairness or prejudice that has been caused, whether a fair hearing is still possible, and whether striking out or some lesser remedy would be an appropriate response to the non-compliance: Weir Valves & Controls (UK) Ltd v Armitage [2004] ICR 371.[19]Guidance was also given in Harris v Academies Enterprise Trust [2015] IRLR 208 at [26]: 8 of 12 “A judge may wish to ask why the party in breach has behaved as he has. He will wish to consider the nature of what has happened. A failure to comply with orders of a tribunal over some period of time, repeatedly, may give rise to a view that if further indulgence is granted, the same will simply happen again. Tribunals must be cautious to avoid that…”[20]In Smith v Tesco Stores Ltd [2023] EAT 11 the EAT upheld the tribunal’s finding that there could not be a fair trial because the Claimant had refused to cooperate with the employer and the Employment Tribunal. In that case there had been difficulty, despite several preliminary hearings, in identifying the issues. This resulted from a course of conduct in which the Claimant (a litigant in person) had shown that he was not prepared to cooperate with the tribunal process. The tribunal concluded that he would not abide by his obligation to assist in achieving the overriding objective and that his disruptive conduct was likely to be repeated. The Claimant was not working towards a trial that was fair in the sense of avoiding the undue expenditure of time and money, taking into account the demands of other litigants and the finite resources of the Tribunal. The Tribunal concluded that the Claimant had acted in a manner that was scandalous, unreasonable or vexatious, that a fair trial was no longer possible, and that a strike-out of the entire claim was proportionate.[21]The EAT cautioned that the case should not be seen as a ‘green light’ for routine strike-out of cases that are difficult to manage. HHJ James Tayler commented: ‘Strike out is a last resort, not a short cut. For a stage to be reached at which it can properly be said that it is no longer possible to achieve a fair hearing, the effort that will have been taken by the tribunal in seeking to bring the matter to trial is likely to have been as much as would have been required, if the parties had cooperated, to undertake the hearing. This case [was] exceptional because, after conspicuously careful, thoughtful and fair case management, the claimant demonstrated that he was not prepared to cooperate with the respondent and the employment tribunal to achieve a fair trial. He robbed himself of that opportunity.’ 9 of 12
Conclusions
[22]There is no question that the Claimant is in serious default of the Tribunal’s Orders. His original claim form lacked the basic information that would be necessary for the Respondent to understand the case it had to meet. The Claimant is in breach of Legal Officer Singh’s direction that he provided an Impact Statement and Medical Reports, and he is in breach of my Order that he provide the same as well as full particulars of his s20-21 failure to make reasonable adjustments claim.[23]That said he has now provided some additional particulars. He has clarified that his claim is for a failure to make reasonable adjustments and that he told two managers of the condition that he suspected he had autism. He says said they did not give him enough time or support before dismissing him. The Respondent, whose submissions do carry force, has candidly accepted that a fair trial would nonetheless be possible if the final details were provided. Following the guidance recited above, and applying that to the facts of this case, it is my judgment that the Respondent’s application for an Order striking out the Claimant’s claim is refused. It is premature. Whilst the Claimant appears to have shown a cavalier approach for progressing his claim in a manner that can be understood, it is my judgment that the Claimant, who may well suffer from Autism, cannot be fairly categorised as the type of Claimant in Taylor (above) who has ‘demonstrated that he was not prepared to cooperate with the Respondent and the Employment Tribunal to achieve a fair trial’. In the circumstances I shall make an Unless Order, that unless the Claimant provides to the Respondent and the Tribunal with the information set out below by no later than 4.30pm on 26th January 2026 his claim shall be struck out without further Order from the Court. The information required is: 23.1. An impact statement, setting out how the Claimant’s autism has a substantial effect on his ability to carry out normal day to day tasks; 23.2. The 15 page Medical report referred to by the Claimant regarding his autism diagnosis; 10 of 12 23.3. What provision, criterion or practise (PCP) of the Respondent that placed the Claimant at a substantial disadvantage compared to persons who do not have autism. The Claimant indicated it was the Respondent’s probationary review policy. He must confirm whether this is the PCP relied on or not. 23.4. How the PCP places him at a disadvantage. The Claimant indicated that he took longer to absorb information and required confirmation from colleagues that he was right. He must confirm whether this is the disadvantage relied on or not. 23.5. What adjustments to the PCP that the Respondent ought reasonably to have made. The Claimant indicated additional time to meet the probationary requirements and more support from his managers in terms of confirmation that what he was doing was right. He must confirm whether these are the adjustments relied on or not.[24]In the event that by 26th January 2026 the Claimant remains in default, his claim will be struck out. I have provided case management directions for the further progression of this claim by separate order. Those directions are recited below: 24.1. By 2nd February 2026 the Respondent must write to the Claimant and the Tribunal to state whether it accepts that the Claimant has complied with the terms of the Unless Order. 24.2. In the event of compliance the Respondent must by no later than 4.30pm on 23rd February 2026 send to the Claimant and the Tribunal(i) its position on the Claimant’s disability,(ii) its position on the Respondent’s knowledge of that disability and(iii) an updated Grounds of Resistance to the s20-21 EqA claim. 24.3. A Case Management Hearing will then be listed. In the event that compliance with the Unless Order is disputed, that hearing will be listed to determine the issue of compliance and/or relief from sanction. 11 of 12 Judgment and Reasons approved by: