Ahmed v Bedford Borough Council UKEAT/0064/13/SM
Subjects: Definition of Disability – Strike Out – failure to comply with order – Co-operation with Medical Expert
C issued a claim for, amongst other things, race, religious and disability discrimination. The ET Judge gave directions for the joint instruction of a medical expert. C failed to attend his appointment with the expert. R applied to strike out C's claims due to his failure to comply with directions. The EJ struck out the claims under r.18(7)(c) on the basis that C's conduct was ‘scandalous, unreasonable or vexatious’. C appealed.
C was employed by R as a street ranger. During his employment he lodged three claims in total to the Employment Tribunal alleging discrimination on the grounds of race and/or religion or belief and disability discrimination based on work-related stress and depression.
R did not accept that C was disabled and a pre-hearing review was fixed to determine disability. EJ Metcalf gave directions for the joint instruction of a medical expert. C lodged his witness statement setting out the effects of his illness but did not co-operate with the instruction of the medical expert. R made successive applications to have the C's claims for discrimination based on race, religion and disability struck out due to this failure to comply with the Order. The claims were eventually struck out by the EJ on the basis that C's conduct had been scandalous, unreasonable and vexatious. C appealed the decision.
HHJ Clark reviewed the relevant authorities on striking out discrimination claims (Anyanwu & South Bank Student Union  ICR 391; Blockbuster Entertainment Ltd v James  IRLR 630; Abegaze v Shrewsbury College of Arts & Technology  IRLR 238). He identified three questions to be considered by the Tribunal in deciding the issue:
Was the Claimant's conduct such that the power to strike out was triggered?
Had the EJ properly considered whether a fair trial was possible, in the light of the authorities?
Had a lesser sanction, such as an unless order, been considered properly?
The EAT held that the EJ had not specifically addressed the issue of whether a fair trial was possible and had not considered issuing an unless order or separating out the race and religion claim from the disability claim. As a result the appeal was allowed and the case was remitted for reconsideration by a different Tribunal.
The case is a reminder that it will only be in exceptional circumstances that a discrimination claim should be struck out and that a tribunal striking a discrimination claim should only do so after it has taken great care to address all the circumstances of the case. The starting point is that discrimination claims ought to be heard on their merit.
The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2013/0064_13_1705.html