Mr M Allen v Aegon UK Corporate Services Ltd: 8001170/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001170/2024Venue EdinburghHearing 31 October 2025
Between
Mr M AllenClaimantAegon UK Corporate Services LimitedRespondent
Before
Employment Judge SutherlandMr L Anderson (instructed by Solicitor) for claimantMs K Sutherland (instructed by Solicitor) for respondentDate 10 November 2025
JUDGMENT
The Judgment of the Tribunal is that the respondent’s application for strike out failing which deposit is refused.
REASONS
[1]The claimant has made complaints of disability discrimination. It is not in dispute that the claimant has disability status as a result of Multiple Sclerosis which has symptoms of Postural Tachycardia (PoTS) and Coronary Artery Spasm (CAS).[2]On 10 June 2025 the respondent made an application for strike out failing which a deposit on the basis that certain complaints have little or no reasonable prosects of success. A preliminary hearing listed for today to determined that application.[3]Parties had prepared a bundle of documents. No witness gave oral testimony at this hearing. The Respondent lodged written submissions. Both parties made oral submissions.[4]The claim is in a detailed narrative style and significant attempts had been made by the respondent in correspondence and by the tribunal at Case Management Hearings to try to ascertain exactly what legal complaints were being made and on what grounds. Notwithstanding those efforts, considerable time was spent at today’s hearing establishing what complaints were insisted upon by the claimant.[5]Following detailed discussion it was expressly confirmed that the complaints identified in the following tables are the only complaints being made by the claimant and all and any other prior complaints are withdrawn. Accordingly there are no complaints of direct discrimination or indirect discrimination or protected disclosure detriment. The only complaints of discrimination arising, failure to make reasonable adjustments, harassment and victimization are those identified in these tables. If the claimant seeks to rely upon a complaint not identified in these tables he must make an application to amend.[6]Within 2 weeks the claimant must provide to the respondent the missing information marked “TBA” (i.e. date of harassment complaint no. 1). The tables of complaints[7]The following initials are used in the following tables. Initials Name Job Title SC Stewart Capell Head of IT Audit. MD Mohit Dhingra Chief internal Auditor Discrimination arising from disability (Section 15 Equality Act 2010)[8]Each row in the following table has been populated with the following information in respect of each complaint of discrimination arising from disability:a. the act or omission amounting unfavourable treatment;b. the date and the name of the perpetrator of that treatment;c. the something arising in consequence of his disability; andd. the factual basis upon which it could be inferred that the unfavourable treatment was because of that something (the discriminatory factors). Discrimination arising from disability (Section 15 Equality Act 2010) No. Date Treatment Perpetrator Something Basis of inference Arising 1. 10 Placed on a SC Failure to A Performance June Performance provide dragon Support Agreement 2024 Support software / is issued to manage Agreement training performance impacted on his concerns performance Failure to make reasonable adjustments (Section 20 Equality Act 2020)[9]Each row in the following table has been populated with the following information in respect of each complaint of failure to make reasonable adjustments:a. the provision, criterion or practice (‘PCP’) or physical feature;b. the substantial disadvantage the Claimant was put to by, the application of that PCP, or the physical feature, or the absence of that auxiliary aid, in comparison with workers who are not disabled;c. the factual basis upon which it could be inferred that the Respondent knew, or could reasonably have been expected to know that the Claimant was likely to be put to that disadvantage (‘knowledge’);d. the step it would have been reasonable to take to avoid that disadvantage or provide that auxiliary aid (‘reasonable adjustment’); ande. the date by which that step ought to have been taken. Failure to make reasonable adjustments (Section 20 Equality Act 2010) No. PCP / Disadvantage Knowledge Reasonable Date physical Adjustment feature 1. N/A Without Dragon Raised by Dragon software as April software the OH prior to an auxiliary aid 2024 claimant has day 1 re difficulty reading voice to text and typing on his and read laptop computer aloud because of a loss technology of vision and muscle weakness. 2. The physical He has difficulty Raised by Training on dragon May feature was reading and OH prior to software 2024 his laptop typing on his day 1 (see computer laptop computer above) and without training by claimant Failure to make reasonable adjustments (Section 20 Equality Act 2010) No. PCP / Disadvantage Knowledge Reasonable Date physical Adjustment feature on the Dragon on or before software which 18 April was installed 2024 3. The physical His mobility Raised by Sit the claimant at a April feature was issues affected OH prior to desk which was 2024 the distance his ability to get day 1 and closer to the toilets between his to the toilets. by claimant desk and the on or before toilets. He required to 29 March work from home 2024 rather than in the office with colleagues Harassment related to disability (Section 26 Equality Act 2020)[10]Each row in the following table has been populated with the following information in respect of each complaint of harassment:a. the act or omission amounting unwanted conduct;b. the date and the name of the perpetrator of that conduct;c. the factual basis upon which it could be inferred that the conduct related to his disability (the discriminatory factors);d. Whether the conduct had the prohibited purpose or effect (violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment). Harassment related to disability (Section 26 Equality Act 2020) No. Date Unwanted conduct Perpet Basis of inference Purpose rator or effect 1. TBA I experienced a SC I had initiated an Purpose seizure in the office emergency alert on or effect and received a video my phone during the call minutes after seizure, which sent an informing SC. SC was emergency text to Jill, visibly agitated and my wife who knows Harassment related to disability (Section 26 Equality Act 2020) No. Date Unwanted conduct Perpet Basis of inference Purpose rator or effect shouted for me to put how to support me my phone down by during a seizure. saying “You could do me the common decency of putting your phone down when i'm talking to you”. 2. 11 At the outset of the MD The purpose of the Purpose April grievance meeting meeting was to or effect 2024 MD questioned the discuss his concerns Claimant on why he regarding the had involved the reasonable union adjustments[11]In respect of the complaint of harassment no. 1, the respondent confirmed on instruction that the application to amend by way of ‘relabelling’ as harassment was not opposed. Victimisation (Section 27 Equality Act 2020)[12]Each row in the following table has been populated with the following information in respect of each protected act:a. date and nature of the protected act (e.g. making an allegation of discrimination) Protected Act (Section 27 Equality Act 2020): No. Date Protected Act 1. 29 Grievance raised in which alleged reasonable adjustments not March made 2. Each row in the following table has been populated with the following information in respect of each complaint of victimisation: a. the act or omission amounting detrimental treatment;b. the date and the name of the perpetrator of that treatment;c. the factual basis upon which it could be inferred that the detrimental treatment was because of the protected act (the basis of inference). Victimisation (Section 27 Equality Act 2020): No. Date Detriment Perpetrator Basis of inference 1. 10 Placed on a SC This landed 2 weeks after I June performance had submitted a grievance. 2024 support agreement Facts not in dispute[13]The following facts were not in dispute -[14]The Claimant was employed by the Respondent as a Senior IT Auditor from 1 February 2024 to 23 July 2024.[15]Prior to commencing employment with the Respondent, the Claimant was referred to the Respondent’s Occupational Health provider for a post-offer medical assessment.[16]On 8 January the claimant had a independent medical assessment with Occupational Health by telephone which noted that: “he was diagnosed with multiple sclerosis in 2017 and according to him his main symptoms of these condition are related to Reynaud's syndrome and coronary artery spasm. Mr. Allen stated that his underlying conditions do affect his mobility and cause problems with balance and dizziness…He stated that he is able to walk approximately 100 metres with the crutches but then requires rest”; “Mr. Allen stated that due to Reynaud's syndrome he might have problems with typing, especially in winter;” “I also suggest that his workplace in the office is located close to the disabled toilet and he might require some additional equipment”; “Mr. Allen previously had benefited from voice to text and read aloud technology. Therefore, I suggest that this is provided to him”[17]On 29 March 2024, the Claimant raised concerns with HR centering around his manager SC, HIT. The Claimant met with MD, CIA on 11 April to discuss those concerns. MD investigated the concerns raised and wrote to the Claimant on 3 May to set out his conclusions. MD did not uphold any of the complaints made by the Claimant.[18]On 10 June the Claimant was issued with the terms of a Performance Support Agreement (“PSA”) regarding allegations of sustained poor performance and non-delivery of work. The PSA was due to commence on Monday 17 June and last for a period of 4 weeks.[19]The Respondent wrote to the Claimant on 10 June 2024 alleging that the Claimant had made a post on his LinkedIn page which appeared to be critical of the Respondent and to note this would be investigated.[20]The Claimant was absent from work on sick leave from 25 June 2024 until 23 July 2024.[21]On 23 July the Respondent wrote to the Claimant to remind him of his obligations under his contract of employment and noting that the Respondent’s policies continued to apply to him whilst he was on leave. It alleged that the Claimant made a number of posts on LinkedIn, the content of which appeared to relate to his manager or the Respondent’s business, or both.[22]On 23 July 2024 the Claimant resigned from his employment with immediate effect. The law on strike out[23]Under Rule 37(1) of the Employment Tribunal Rules of Procedure, a Tribunal may strike out all or part of a claim or response on various grounds including- (a) that it is scandalous or vexatious or has no reasonable prospects of success.[24]In light of the severe consequences of strike out, such a decision is considered a draconian step which should only be taken on the clearest grounds and as a matter of last resort. Its purpose is not to punish the conduct but rather to protect the other party from the consequences of the conduct (Bolch v Chipman [2004] IRLR 140, EAT).[25]Before making a strike out order, the tribunal must give the relevant party a reasonable opportunity to make representations, either in writing or, if requested by that party, at a hearing. No reasonable prospects[26]Having regard to the legal authorities referred to below the following is noted: strike-out on grounds of no reasonable prospects is considered by means of a summary determination; where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts; exceptional circumstances may arise where disputed facts are totally and inexplicably inconsistent with undisputed contemporaneous documentation; discrimination and unfair dismissal cases are generally fact sensitive and therefore strike out on this ground is exceptional; where there are no reasonable prospects the Tribunal must decide whether to exercise it’s discretion mindful that full evidence has not been heard, although the Tribunal should not be deterred in the most obvious of cases.[27]The House of Lords in Anyanwu and Ors v South Bank Students’ union and Ors [2001] IRLR 305 per Lord Steyn (par 24): “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 their proper determination is always vital in our pluralistic 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”[28]The Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, per Maurice Kay LJ: (Para 27) “what is now in issue is whether an application has a realistic as opposed to a merely fanciful prospect of success… However, what is important is the particular nature and scope of the factual dispute in question… there may be cases which embrace disputed facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success” (Para 29) " there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise…It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation."[29]The Court of Session in Tayside Public Transport company Ltd (t/a Travel Dundee) v Reilly [2012] Scot CS CSIH 46, per Lord Justice Clerk – [29] “The power of the ET to strike out a claim at a pre-hearing review may be exercised only where the ET determines that the claim "has no reasonable prospect of success"…Even if the Tribunal so determines, it retains a discretion not to strike out the claim”. [30] “the power conferred … may be exercised only in rare circumstances. It has been described as draconian ... In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel (2003) CP Rep 51, Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions... But in the normal case where there is a "crucial core of disputed facts," it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out…” [33]… the Tribunal will have to assess both the substantive issues…the fairness of the procedures by which the decision to dismiss was reached (British Home Stores Ltd v Burchell [1980] ICR 301; Iceland Frozen Foods Ltd v Jones [1983] ICR 17; Foley v Post Office; HSBC Bank v Madden [2000] IRLR 827; Employment Rights Act 1996, s 98(4), supra). [34]… In my view, he should have considered whether a full Tribunal conducting a formal hearing into the claim might have fuller information before it than he had”.[30]The Employment Appeal Tribunal in Mechkarov v Citibank NA UKEAT/0041/16/DM, having reviewed Anyanwu, Ezsias and Tayside, per Mr Justice Mitting (para 14): “On the basis of those authorities, the approach that should be taken in a strike out application in a discrimination case is as follows:(1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the Claimant’s case must ordinarily be taken at its highest;(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts”.[31]The Court of Appeal in Ahir v British Airways Pic [2017] EWCA Civ 1392 per Underhill LJ (para16): “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 a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment”[32]And Lord Hope (par 37): “I would have been reluctant to strike out these claims, on the view that discrimination issues of the 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." The law on deposit[33]Under Rule 39(1) of the Employment Tribunal Rules of Procedure, where the tribunal considers that any specific allegation or argument in a claim has little reasonable prospects of success, it may order the Claimant to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument.[34]Whilst this is a lower hurdle than having no reasonable prospects of success (under Rule 37 on strike out), there must be a reasonable basis upon which to doubt that the legal arguments are valid or that the material facts necessary to support the allegation will be established.[35]Even if there are little reasonable prospects of success, the Tribunal retains a discretion whether to make an order for a deposit having regard to the overriding objective to deal with cases fairly and justly. Relevant factors may include whether it will avoid delay (and save time), whether it will avoid expense (and save costs), and the importance of the issues.[36]Under Rule 39(2), when deciding the amount of each deposit, the tribunal must make reasonable enquiries into the Claimant’s ability to pay the deposit and have regard to such information when deciding the amount of the deposit. Where multiple allegations or arguments are advanced (as is the case here) there may be multiple deposits ordered not exceeding £1000 each. However the tribunal should stand back and consider whether the total deposit awarded is proportionate (Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14, EAT).[37]The purpose of a deposit order is to identify weak claims, to flag that weakness to a party, and to warn of a risk of expenses (costs) if they proceed. Its purpose is not to achieve strike out indirectly by ordering a deposit that cannot reasonably be complied with (Hemdan v Ishmail [2017] IRLR 228, EAT).[38]Under Rule 39(4), if a deposit is ordered and the Claimant fails to pay the deposit, the specific allegation or argument will be struck out.[39]Under Rule 39(5), if a deposit is ordered and paid, the deposit shall be refunded to the Claimant unless tribunal ultimately decide to rejects the specific allegation or argument for substantially the same reasons. In these circumstances the Claimant may treated as having acted unreasonably when considering an award of expenses (costs) and further, the deposit shall be paid to the Respondent. Discussion and decision[40]Following identification of the complaints set out above, the respondent’s application for strike out, failing which deposit, on the ground of little or no reasonable prospects of success was restricted to the complaints of failure to make adjustments No.s 2 and 3. Reasonable adjustment No. 2: training on dragon software[41]The claimant’s ET1 states: a. “It took a week for GTS to get the software to work on the laptop I was provided with and I did not receive training or time to self-learn to support the effective use of the tooling. I am still unable to use Dragon due to not being given time to develop the voice profile that the tool requires to operate effectively and was told by Stewart to stop the “training” and focus on a task”.[42]The response to the request for further particulars provides:a. What PCP? None is specified in relation to this adjustment.b. What substantial disadvantage? “Unable to see the screen or utilise Speech-To-Text to progress the assigned workload resulting in seizures, brain fog, anxiety and stress”c. What reasonable adjustments? “Implementation of Dragon Software in line with Implementation Plan; provision of training”d. How would this have avoided the disadvantage? “I would be able to read and operate readable content with Dragon Software to deliver tasks in line with the job description”.[43]The further specification provides: a. “Physical feature was lack of training on dragon software. Software was installed on to his laptop however no guidance or training was given as to how to use this. The Claimant was unable to utilise the facilities of dragon such as Speech-to-text”.[44]The respondent submits that a lack of training cannot amount to a physical feature and that is inarguably true. The claimant submits that the computer and the software on it the a physical feature. Notwithstanding the specification, it is reasonably clear from the pleadings, particulars and specification read together that the physical feature is the laptop computer, which he is unable to properly utilize (the disadvantage), until he receives training on the dragon software (the adjustment). There is therefore a stateable complaint.[45]The respondent also submits the contemporaneous documentation demonstrates that there was no failure to provide training. It is apparent from the documentation that on 18 April the Claimant was provided with training materials on the software, on 21 May the claimant confirmed “I am reviewing Dragon software training today and getting myself familiar with its functionality” and on 28 May he confirmed by message “I’ve pretty much learned as much as I need to use Dragon”.[46]It is reasonably apparent that by 21 May the claimant had undertaken training on Dragon Software which it is understood had been installed on 8 April. Taking the claimant’s case at its highest it is understood that he required both the software and the training to be able to use it and he did not receive that until 21 May. There was accordingly an arguable delay in providing the software and training. It is also noted that the claimant stated in the further particulars: “Dragon software and location to a toilet are fundamentals which I would expect to be implemented on day 1 [his start date].” In the period between his start date of 1 February and 21 May 2021 he had not received any training.[47]This complaint has more than a merely fanciful prospect of success. Accordingly it cannot be said that it has no reasonable prospects of success and the application for strike out is therefore refused.[48]Further, there is no reasonable basis upon which to doubt that the legal arguments are valid or that the material facts necessary to support the allegation will be established. Accordingly it also cannot be said to have little reasonable prospects of success and application for deposit is therefore refused. Reasonable adjustment No. 3: desk close to the toilets[49]The claimant’s ET1 states: a. “Desk Location – No effort made in the provision of a desk that was closer to the toilet ,when requested, due to the Head of Department wanting the team to sit together. This has resulted in toilet related accidents when attempting to get to a toilet and a significant seizure whilst in the office. I received confirmation that my desk had been moved many months after raising issues with the desk location and my mobility. I received a communication stating that I am required to attend the office in line with my contract of employment. I find it unfathomable that it has taken for me to experience toilet related accidents before anything was done about my desk location, and suggests further attempts to engineer an outcome by suggesting that I am in breach of contract.”.[50]The response to the request for further particulars references:a. What PCP? None is specified in relation to this adjustment.b. What substantial disadvantage? “Unable to walk to the toilet due to muscle pain and distance resulting in toilet related accidents. Request to move closer to the toilet was rejected.”c. What reasonable adjustments? “Moved closer to the toilet.”d. How would this have avoided the disadvantage? “I would be able to read and operate readable content with Dragon Software to deliver tasks in line with the job description”.e. What physical feature put you at a substantial disadvantage? Physical distance to toilet.f. For any physical feature identified, how do you say this put you at a substantial disadvantage? Had toilet related accidents. Pain and difficulty getting to toilet.g. How would this adjustment have avoided the disadvantage you say you were subjected to? I would have been able to avoid multiple toilet related incidents that were degrading[51]The further specification provides: a. “In addition, regarding physical features, the Claimant was not moved sufficiently proximate to the toilets given his physical requirements, resulting in him having a number of toilet related incidents in the office”.[52]The respondent submits that that an alleged lack of effort to move the Claimant sufficiently proximate to the toilets or rejection of a request to move his desk, is not a physical feature and that is inarguably true. The claimant submits that the location of his desk relative to the toilets is the physical feature. It is clear from the pleadings, particulars and specification read together that the physical feature is the distance from his desk to the toilets, which rendered him unable to walk to the toilets without toilet related accidents (the disadvantage), until he is allocated a different desk (the adjustment). There is therefore a stateable complaint.[53]This complaint has more than a merely fanciful prospect of success. Accordingly it cannot be said that it has no reasonable prospects of success and the application for strike out is therefore refused.[54]Further, there is no reasonable basis upon which to doubt that the legal arguments are valid or that the material facts necessary to support the allegation will be established. Accordingly it also cannot be said to have little reasonable prospects of success and application for deposit is therefore refused.
Conclusion
[55]The respondent’s application for strike out, failing which deposit, on the ground of little or no reasonable prospects of success in respect of the complaints of failure to make adjustments is refused.