MISS N JONES v MOORCROFT MANOR LTD [2003] UKEAT 0364_02_1402
[1]APPEARANCES For the Appellant MR T LINDEN (Of Counsel) Instructed by: Messrs Tubervilles with Nelson Cuff Solicitors 122 High Street Uxbridge Middlesex UB8 1JT For the Respondent NEITHER PRESENT NOR REPRESENTED MR RECORDER PLENDER QC The issue in this appeal is whether the Employment Appeal Tribunal erred in law in striking out the Appellant's Originating Application pursuant to Rule 8 of the Employment Tribunals (Constitution Etc) Regulations 2001. The background of the matter is that proceedings were instituted by Miss Jones for unfair dismissal against Moorcroft Manor Ltd who managed and ran a special school. She also made a separate claim for disability discrimination. In the course of the management of the second of those claims the chairman made a direction dated 12 October 2001 directing the Applicant to serve on the Respondent within 8 weeks "a statement and any supporting medical reports", these being his words.[2]The time limited for compliance with that direction was extended and within the time so extended the Applicant served both a statement and a report from a general practitioner. A number of criticisms were made of that report by the Respondent particularly as to its clarity, ambiguity, the nature of the disability, if any, identified in it; and the chairman subsequently made a further direction that the Applicant should identify the disability relied upon within the extended time specified by the second direction. The Applicant did identify the disability relied upon 'asthma'[3]The chairman took the view that the material presented was far from satisfactory and that it did not sufficiently or compellingly make out the disability relied upon and after giving appropriate warning in accordance with the Regulations of 2001 he decided to strike out the whole of the application. It is the unanimous view of the present Tribunal that in doing so he erred in law. That is so firstly for the reason advanced by Mr Linden, that is, that the directions of 12 October 2001 did not in terms require the service of a medical report, and secondly because even if there had been a requirement to serve a medical report it was served within the extended period and asthma was properly identified as the disability relied upon. Further points were made by Mr Linden particularly as regards proportionality but it is not necessarily for us to address those.[4]We sympathise with the exasperation expressed by the chairman, at certain stages in the conduct of this matter and understand the reason for his adopting the course that he did; but we are fully satisfied that the course which he did adopt was not in accordance with the law and accordingly we conclude that the right course to take is simply to set aside the decision to strike out. Accordingly the case is to proceed. It proceeds so far as the disability claim is concerned upon the premise that the Applicant's case is that she has suffered disability discrimination by reason of her asthma.[5]We are grateful to Counsel, Mr Linden for his assistance. We note that the Respondent did not contest the application and are not represented.