Mr A Hadley v Outdoor and Cycle Concepts Ltd: 8000323/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000323/2023Venue AberdeenHearing 17 November 2023
Between
Mr A HadleyClaimantOutdoor & Cycle ConceptsRespondent
Before
Employment Judge N M HosieDate 7 May 2024
JUDGMENT
[1]the claimant was a disabled person, at the relevant time, in terms of s.6 of the Equality Act 2010; and[2]the Tribunal has jurisdiction to consider his disability discrimination claim. E.T. Z4 (WR)
REASONS
[1]The claimant, Aaron Hadley, brought claims of unfair dismissal and disability discrimination. The respondent denied his claims. The respondent also did not accept that the claimant was a disabled person, in terms of the Equality Act 2010 (“the 2010 Act”). This case called before me, by way of a Preliminary Hearing, to consider and determine the issue of disability status.
The Evidence
[2]I heard evidence from the claimant at the Hearing and a number of documentary productions were submitted. These included the claimant’s medical records and an “Impact Statement”, as ordered by Judge Hendry at a Case Management Preliminary Hearing on 4 September 2023.[3]Mr Hadley gave his evidence in a measured, consistent and convincing manner. His evidence was consistent with the medical records. He presented as credible and reliable.
The Facts
[4]Having heard the claimant’s evidence and considered the documentary productions, I was able to make the following findings in fact, relevant to the issue of disability status, with which I was concerned.[5]The claimant is 33 years of age. He commenced his employment with the respondent as a Customer Adviser in September 2016. His employment ended in June 2023. Sciatica[6]The disability relied upon by the claimant is Sciatica. I am satisfied that he has this “impairment”. It was first diagnosed in 2017. It is a recurring impairment. The respondent's record of his related sickness absences from work was as follows:- “July 2021 - Musculoskeletal problems - 1 day Dec 2021 - Back problems -3 days 12 Dec 2022 - Back problems - 5 days 6 Feb 2023 - Back problems - 4 days.”[7]His medical records also revealed a number of consultations with his G.P. as a result of back pain: on 25 August 2017; 16 July 2021; 19 July 2021; 29 March 2022; and 19 December 2022. When he did so, he was invariably prescribed pain killers and given guidance on stretching exercises which he should do. However, he did not contact his G.P. on every occasion when he was suffering from back pain.[8]His back pain can flare up at any time. There is no pattern. At the relevant time, when he was employed by the respondent, it could flare up every few months or so.[9]So far as the impact on him is concerned, I accepted his evidence that:- “From day to day the effects can vary drastically with no real sense of why but it can range from just muscle stiffness, to aches and pains, the sharp nerve twinges and when it’s at its worst limping due to severe pain when walking, to full on not being able to walk at all due to buckling legs/knee/hip from excruciating muscle and nerve pain which often lasts a few days at a time of not being able to be mobile.”[10]I accepted the claimant's evidence that on the occasions when he experiences a serious “flare-up” he is unable to walk, sometimes for two days or more. His back pain is so painful that he is unable to walk down the hallway to the kitchen at his home, as putting any weight on his legs makes them “buckle”.[11]Since developing Sciatica, the claimant has had to stop rock climbing, a sport he was passionate about. He has to do “Sciatic stretches” most mornings and nights. It also affects the way he sleeps. He has to take painkillers on a regular basis, depending on the severity of the pain. It has had a significant impact on his active lifestyle. I accepted the claimant’s evidence that it had “changed his life”. His Sciatica can be exacerbated by having to stand in one place for a long period of time which he sometimes had to do when employed by the respondent. Discussion and Decision[12]It was for Mr Hadley to establish that he had a disability at the relevant time when he was employed by the respondent. Not just disabled generally, but disabled within the meaning of s.6 of the 2010 Act which is in the following terms:- “6 Disability (1) 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.”[13]When considering the circumstances relating to Mr Hadley, I had regard not only to this definition, but also to Schedule 1 to the 2010 Act which amplifies the definition. I also had regard to the “Guidance On Matters To Be Taken Into Account In Determining Questions Relating To The Definition Of Disability (2011)”.[14]I was also assisted by the observations of the EAT and the principles laid down in Goodwin v. The Patent Office [1999] IRLR 4 which is still good law. impairment[15]The first requirement is that Mr Hadley has a physical or mental impairment. It was not disputed that he has Sciatica which is a physical impairment. Adverse effect io 16. I then went on to consider whether the impairment could be said to have an “adverse effect”. When doing so, I was mindful that the 2010 Act is directed towards an impairment of a person’s ability to carry out day-to-day activities. The EAT commented in Goodwin that it was important to remember that the focus required by the 2010 Act is on the things that the claimant cannot do, or can only do with difficulty, rather than on the things that the person can do.[17]While the severity of Mr Hadley’s Sciatica varies, it is clear that when he has a serious “flare-up” he is immobilised. He is unable to walk, sometimes for days, until the pain gradually subsides over a period of time. I had no difficulty, therefore, in arriving at the view that Mr Hadley's impairment did have an “adverse effect”. Substantial[18]Once it has been established that an impairment has a “adverse effect”, it must be shown that the adverse effect is “substantial”. The word “substantial” is capable of more than one meaning but is defined in s.212(1) of the 2010 Act as meaning “more than minor or trivial”. There is no doubt, that the claimant’s impairment is “more than minor or trivial”. The Guidance explains that the requirement for any adverse effects of an impairment on day-to-day activities to be “substantial” reflects, “the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”. Recurring impairment[19]If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, as is the case here, but that effect is likely to recur, it is to be treated as continuing to have that effect (para. 2(2) in Schedule 1 to the 2010 Act). I had no doubt that the claimant’s impairment is likely to recur, on the basis of his own evidence and the medical records. Long-term[20]Finally, I had to consider whether the adverse effect of Mr Hadley’s impairment could be said to have a “long-term effect". Under para. 2(1) of Schedule 1 to the 2010 Act, the effect of an impairment is long-term if it:• has lasted for at least 12 months;• is likely to last for at least 12 months or• is likely to last for the rest of the life of the person affected.[21]An impairment is still considered to be long-term if the effects are likely to come and go. They are known as “fluctuating or recurring effects”.[22]I referred above to para. 2(2) of Schedule 1 to the 2010 Act, which is in the following terms:- “ 2. Long-term effects (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”[23]I have no doubt, on the basis of the evidence, that the effect of the claimant’s Sciatica is “long-term”. It was first diagnosed in 2017, has continued intermittently thereafter and is “likely to recur”.[24]I decided, therefore, that Mr Hadley was disabled at the relevant time, within the meaning of the 2010 Act. I have split the statutory definition into its various components. However, I remained mindful that the EAT had expressed the view in Goodwin that a Tribunal must take care not to lose sight of the picture as a whole. Having done so, I arrived at the same view.
Introduction
[1]This case called before me by way of a Preliminary Hearing to consider an application by the respondent for strike-out, and a Deposit Order. The Hearing considered the “prospects” of the claims succeeding. The Hearing was conducted by video conference, using the Cloud Video Platform (“CVP”).
The claims
[2]Mr Hadley brought claims of constructive unfair dismissal and of disability discrimination, comprising complaints of victimisation, in terms of s.27 of the Equality Act 2010; a failure to make reasonable adjustments, in terms of ss.20 and 21; and harassment, in terms of s.26. His claims were denied in their entirety by the respondent. Disability status[3]At a Preliminary Hearing on 17 November 2023, I decided that Mr Hadley was a “disabled person”, in terms of s.6 of the 2010 Act, in respect of his Sciatica. “Prospects” Preliminary Hearing[4]It was not necessary for me to hear any evidence at the Preliminary Hearing as, for the purposes of the Hearing only, I took the claimant’s factual averments at their highest value: I accepted that he would be able to prove all the facts alleged. I heard submissions by and on behalf of the parties, with reference to a Joint Bundle of documentary productions which had been submitted (“P”). Respondent’s submissions[5]The respondent’s Counsel spoke to a written “Skeleton Argument” which is referred to for its terms. The following is a brief summary.[6]Counsel first identified the complaints which were being advanced. He referred to Mr Hadley’s pleadings which comprise a claim form (P.1-14); Further Particulars (P.54-65); and “new Further Particulars”/ “Fair Notice of claim” (P.72-74). Discrimination claim Victimisation[7]This complaint appeared to be advanced in the claimant’s “new Further Particulars” under the heading “Fair Notice of claim” (P.72 - 74). Counsel submitted, with reference to the terms of s.27 of the 2010 Act, that Mr Hadley had failed to specify a “protected act”.[8]Further, so far as the allegation of “victimisation” by Mr Hadley’s Store Manager in 2022 was concerned (P.72, para. 4), Counsel submitted that this had not been averred in the originating claim form and could only be advanced by way of an application to amend. This had not been done and, in the event of such an application being made, the respondent would object. Counsel submitted, with reference to Chandhok v. Tirkey [2015] ICR 52, that Mr Hadley had been afforded ample opportunity to provide proper specification of the complaints he wished to advance.[9]There was also a time-bar point in relation to the averments of victimisation in 2022.[10]Counsel submitted that in those circumstances this complaint, “was without merit”.[11]Mr Hadley submitted that the various health and safety concerns which he raised had not been addressed by his Area Manager.[12]So far as the time-bar point was concerned, Mr Hadley submitted that this was “part of the lead up to events”. Failure to make reasonable adjustments[13]Counsel identified, with reference to the “new Further Particulars” (P.72-74), the nature of the complaints which were being pursued in this regard:- “a. An incident of 4. 2.23 in which he was allegedly told by Ms Scott to work the delivery after allegedly having ‘voiced issues with (his) back first thing in the morning’. The claimant makes reference to a risk assessment within the context he sets out. b. An (undated) incident in which he was allocated the task of standing at the front of the store by Ms Maclean. The claimant alleges: ‘Under Rebecca Maclean’s scrutiny I was not allowed to move from one designated spot, whereas other members of staff performing this task were allowed to walk about at the front on the store’. The claimant also alleges that, having complained about the impact, he was required to undertake the same task (in the same way) the following day.”[14]Counsel accepted that “a” above was referred to in the originating claim form. However, he submitted that “b" above was not, that such a complaint could only now be introduced by way of amendment; the claimant had made no such application and if he did the respondent would object.[15]So far as “a” was concerned, Counsel submitted that Mr Hadley had failed to identify a provision, criterion or practice (a “PCP”). While he accepted that this was not normally a particularly significant point, he submitted that there was no possibility of Mr Hadley being able to identify one. He submitted that, “the claimant’s case appears to be that he was allegedly being picked on for some reason, rather than that the respondent had some sort of general policy/practice of ignoring health concerns raised by staff."[16]Further, and in any event, the complaint is out of time and, “there are no grounds apparent from the papers for the necessary extension.”[17]Mr Hadley submitted that he was, “led to believe” that the respondent would make reasonable adjustments. He claimed that the respondent, “has had a history of not upholding reasonable adjustments” and that he had raised this “by way of an e-mail to HR". He pointed out that in his originating claim form he had mentioned a, “breach of two risk assessments”. Respondent’s response[18]Counsel accepted that there was reference to risk assessments in the claim form but submitted that Mr Hadley had identified the claims which he wished to pursue in his most recent particulars (P.74, paras. 6(a)(1) and 6(b)(1)). Harassment[19]Mr Hadley accepted that his averments in this regard did not relate to his disability but rather to his constructive unfair dismissal claim. Constructive unfair dismissal[20]Counsel requested a Deposit Order so far as this claim was concerned, on the basis that it has, “little reasonable prospect of success”.[21]He understood that Mr Hadley was relying on an alleged breach of the implied term of trust and confidence. He submitted that, absent any application to amend the claim, this should be based on the factual averments in the originating claim form which Counsel summarised as follows:- “a. The factual basis of the one claim for failure to make reasonable adjustments (the scope of which is covered above), i.e. (i) An incident of 4.2.23 in which he was allegedly told by Ms Scott to work the delivery after allegedly having ‘voiced issues with (his back) first thing in the morning’. b. Alleged issues with the work premises c. The factual basis of the one alleged incident of victimisation (the scope of which is covered above), i.e. (i) An (undated) incident in which Ms Maclean allegedly raised issues with the claimant pertaining to uniform/landyard. d. Many e-mails allegedly being sent to the claimant by the respondent when he was off sick at the end of his employment.”[22]Counsel submitted that the “new Further Particulars* (P.72-74), “sought to expand the factual scope of the factual basis of the alleged conduct relied upon”, and, as such, could only be introduced by way of an application to amend which the respondent would object to.[23]Further, as the allegations go back for two years, Counsel submitted that there is an issue with affirmation.[24]Counsel also submitted that there was an issue as to whether Mr Hadley had resigned in response to any alleged breach of contract by the respondent, as he started a new job on the same day he resigned. Further, despite being ordered to do so by the Tribunal (P.52), he had failed to provide details of the circumstances in which he secured alternative employment.[25]Mr Hadley accepted that Counsel had accurately summarised his allegations. He confirmed that the catalyst for his resignation was when Rebecca Maclean raised issues with him about his uniform. Discussion and Decision
The law
[26]A Tribunal is required, when addressing such applications as the present, to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 which states as follows: - “2. Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable -(a) ensuring that 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. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and the Tribunal.” Strike out[27]Rule 37 provides as follows: - “37. Striking out (1) At any stage of the proceedings, either on its own initiative on an application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success......”[28]The EAT held that the striking-out process requires a two-stage test in HM Prison Service v. Dolby [2003] IRLR 694, and in Hassan v. Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of its specified grounds for striking-out has been established; and, if it has, the second stage requires the Tribunal to decide as a matter of discretion whether to strike-out the claim. In Hassan, Lady Wise stated that the second stage is important as it is, “a fundamental cross-check to avoid the bringing to an end prematurely of a claim that may yet have merit” (paragraph 19).[29]As a general principle, discrimination cases should not be struck out, except in the very clearest circumstances. In Anyanwu v. Southbank Students’ Union [2001] IRLR 305, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: - “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and a proper determination is always vital in our pluralist society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest”[30]Lord Hope of Craighead stated at paragraph 37: “......discrimination issues of a kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence."[31]Those comments have been held to apply equally to other similar claims, such as to public interest disclosure claims. In Ezsias v. North Glamorgan NHS Trust [2007] IRLR 603, the Court of Appeal considered that such cases ought not, other than in exceptional circumstances, be struck out on the ground that they have no reasonable prospect of success, without giving evidence and considering them on the merits. The following remarks were made at paragraph 29: “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than hearing and evaluating the evidence.” 32. in Ukeghason v. Haringey London Borough Council [2015] ICR 1285, it was clarified that there are no formal categories where striking out is not permitted at all. It is therefore competent to strike out a case such as the present, although in that case the Tribunal's striking out of discrimination claims was reversed on appeal.[33]That it is competent to strike-out a discrimination claim was also made clear in Ahir v. British Airways Pic [2017] EWCA Civ 1392, in which Lord Justice Elias stated that: “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such as conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.”[34]If it is not possible for the claim to succeed on the legal basis put forward it may be struck out - Romanowska v. Aspiration Care Ltd UKEAT/0015/1 4.[35]In Mechkarov v. Citi Bank NA [2016] ICR 1121, the EAT summarised the law as follows:- “(a) only in the clearest case should a discrimination claim be struck out; io (b) where there are core issues of fact that turned on oral evidence, they should not be decided without hearing oral evidence; (c) the claimant’s case must ordinarily be taken at its highest; (d) if the claimant’s case was ‘conclusively disproved by’ or was ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, it should be struck out; (e) a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[36]A further summary of the law as to strike out was provided by the EAT in Cox v. Adecco & Others [2021] ILEAT/0339/19. It referred to a level of care needed before a claim is struck out, with commentary also on the difficulties faced by a litigant in person. Deposit[37]Rule 39 provides as follows:- “39. Deposit Orders “Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.......”[38]The EAT considered the issue of Deposit Orders in Wright v. Nipponkoa Insurance (Europe) Ltd UKEAT/0013/14, Hemdan v. Ishmail [2017] ICR486 and Tree v. South East Coastal Services Ambulance NHS Trust UKEAT/0043/17. In Tree the EAT summarised the law as follows:- “[19] This potential outcome led Simler J, in Hemdan v. Ishmail [2017] ICR486 EAT to characterise a Deposit Order as being ‘rather like a sword of Damocles hanging over the paying party’ (para. 10). She then went on to observe that, ‘such orders have the potential to restrict rights of access to a fair trial’ (para. 16). See to similar effect, Sharma v. New College Nottingham UKEAT/0287/11, para. 21, where the honourable Mr Justice Wilkie referred to a Deposit Order being ‘potentially fatal’ and thus comparable to a strike-out Order. [20] Where there is thus, a risk that the making of a Deposit Order will result in the strike-out of a claim, I can see that similar considerations will arise in the ET’s exercise of its judicial discretion as for the making of a strike-out Order under r.37(1), specifically, as to whether such an Order should be made given the factual disputes arising on the claim. The particular risks that can arise in this regard have been the subject of considerable appellate guidance in respect of discrimination claims, albeit in strike-out cases but potentially of relevance in respect of Deposit Orders for the reasons I have already referenced; see the well-known injuctions against the making out of Strike-out Orders in discrimination cases, as laid down, for example, in Anyanwu v. Southbank Students' Union [2001] IRLR 305 HL, per Lord Steyn at para. 24 and per Lord Hope at para.37. [21] In making these points, however, I bear in mind -as will an ET exercising its discretion in this regard - that the potential risk of a Deposit Order resulting in the summary disposal of a claim should be mitigated by the express requirement -see r.39(2) - that the ET shall ‘shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit’. An ET will, thus, need to show that it has taken into account the party’s ability to pay and a Deposit Order should not be used as a back door means of striking-out a claim, so as to prevent the party in question seeking justice at all; see Hemdan at para. 11. [22] Although an ET will thus wish to proceed with caution before making a Deposit Order, it can be a legitimate course where it enables the ET to discourage the pursuit of claims identified as having little reasonable prospect of success at an early stage, thus avoiding unnecessary wasted time and resource on the part of the parties and, of course, by the ET itself. [23] Moreover, the broader scope for a Deposit Order - as compared to the striking out of a claim - gives the ET a wide discretion not restricted to considering purely legal questions: it is entitled to have regard to the likelihood of the parties establishing the facts essential to their claim, not just the legal argument that would need to underpin it; see Wright at para. 34.” Present case Discrimination claim Strike out[39]While I was mindful that the test for strike-out, in relation to an alleged discrimination claim is a high one, I am satisfied that, by and large, Counsel’s submissions in this regard are well-founded.[40]HHJ Tayler said in Cox:- “You can’t decide whether a claim has reasonable prospects of success if you don’t know what it is”. Helpfully, Counsel had identified each of the discrimination complaints which was being advanced. I deal with each, in turn. Victimisation[41]S.27 of the 2010 Act is in the following terms:- “27. Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because - (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act - (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act..........”[42]This complaint is predicated, therefore, on a claimant having done a “protected act”. But, Mr Hadley makes no reference to a protected act in his pleadings.[43]Further, although Mr Hadley makes reference to the 2022 incident, involving Mr Edghill in his “Fair Notice of claim” (P.72/73), there is no such reference in his originating claim form. These averments could only now be introduced by way of an application to amend, which Counsel advised would be opposed.[44]While I am mindful that Mr Hadley is unrepresented, he has had ample opportunity to specify his claim and as the Honourable Mr Justice Langstaff said in Chandhok, to which I was referred: “the claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made - meaning under the Rules of Procedure 2013, the claim as set out in the ET1.”[45]I arrived at the view, therefore, that this complaint has no reasonable prospect of success. I decided, as a matter of discretion, to strike it out, in terms of Rule 37(1)(a). Failure to make reasonable adjustments[46]I am also persuaded that the submissions by Counsel in this regard are wellfounded. Mr Hadley has failed to identify a PCP. While normally that would not be a particularly significant factor and he would be allowed to amend, with reference to Chandhok he has had ample opportunity to provide proper specification of this complaint. Further, and significantly, there does not appear to be any realistic prospect of him being able to specify a valid PCP for, as Counsel submitted, “his case appears to be that he was allegedly being picked on for some reason, rather than the respondent had some sort of general policy/practice of ignoring health concerns raised by staff; further and in any event, his complaint is out of time and there would not appear to be any grounds for the Tribunal exercising its discretion in granting an extension."[47]For all these reasons, therefore, I arrived at the view that this complaint also has no reasonable prospect of success. I decided, as a matter of discretion, to strike out this complaint, in terms of Rule 37(1)(a). Harassment[48]As I recorded above, Mr Hadley accepted that his averments in this regard related to his constructive unfair dismissal claim and did not provide a basis for s.26 claim; he does not allege that the “unwanted conduct” related to his disability. This complaint, therefore, has “no reasonable prospect of success”. It is also struck out under Rule 37(1)(a). Constructive unfair dismissal claim[49]Counsel correctly identified the basis for this claim, as set out in the originating claim form. However, I am not persuaded that this claim has, “little reasonable prospect of success”. There may well be issues in relation to affirmation and whether or not the claimant resigned in response to the alleged breaches, but in my view these matters and the issue of whether the respondent was in breach of the implied term of trust and confidence can only properly be determined by hearing evidence. Taking the claimant’s averments at their highest, I am unable to draw any conclusion on the prospects of this claim succeeding.[50]The respondent’s application for a Deposit Order is therefore refused. Other legislation[51]Finally, Mr Hadley made reference in his pleadings to other legislation, in respect of which the Tribunal does not have jurisdiction (P. 56-57). For the avoidance of doubt, the only claim which is now proceeding is that of constructive unfair dismissal. Case management Preliminary Hearing[52]Counsel submitted that there are averments in Mr Hadley’s most recent particulars (P.72-75) which are not in the originating claim form. If that is correct, it will be necessary for the claim form to be amended. Having regard to the overriding objective in the Rules of Procedure, I direct that a further case management Preliminary Hearing be fixed, by way of CVP, as soon as possible, to consider the following:-
The law
[1]Whether the claimant requires to make an application to amend and, if so, whether or not that application should be granted.[2]Fixing dates for a Final Hearing (parties to have their availability for a Hearing in August, September and October). Tribunal Orders and Directions. Any other relevant matters.