EAT upholds strike out despite outstanding reasonable adjustment applications

Background

In Sharma v University of Nottingham, the claimant had been employed by the respondent from August 2021 until August 2022. He brought claims of age, race and disability discrimination, unfair dismissal and post-employment victimisation. The claimant had a number of physical and mental health conditions, including ischaemic heart disease, chronic pain, anxiety, depression and obstructive sleep apnoea.

A full merits hearing was listed for September 2024. After parting ways with his solicitors in May 2024, the claimant began representing himself and applied for reasonable adjustments, including a minimum three-month extension of all deadlines.

He initially said he would be uncontactable for six to seven weeks following cataract surgery. In July, he described his non-availability over the following six months, citing his wife’s recovery from surgery, his son’s wedding, planned overseas wedding ceremonies, visits from family and friends, and his own health. The claimant failed to attend judicial mediation, an urgent preliminary hearing and the subsequent strike-out hearing, without explaining his absences. The tribunal struck out his claims for unreasonable conduct and, alternatively, failure to actively pursue them. It found that he had deliberately chosen not to engage until it was convenient for him.

EAT decision

The claimant appealed, arguing that the tribunal’s failure to determine his outstanding reasonable adjustment applications materially affected its assessment of his conduct.

The EAT dismissed the appeal. Where a party’s unexplained non-attendance has prevented the tribunal from determining applications at hearings listed to consider them, the tribunal need not formally dispose of those applications before considering strike out. Here, it had done everything reasonably possible to hear the applications in good time.

The tribunal had also considered the claimant’s disability to the extent possible on the available material. His medical evidence and communications did not adequately explain his failures to attend hearings or explain his absences. Much of the conduct concerned his prioritisation of family and social arrangements.

The EAT endorsed the tribunal’s structured assessment of proportionality. The tribunal had considered whether a fair trial remained possible and whether a less drastic measure would suffice. It concluded that an unless order would be futile because the claimant was unwilling to access tribunal communications.

The judge also observed that some submissions displayed repetition and “no doubt unintended sophistry” which could be characteristic of AI assistance. She made no finding that AI had been used; the observation formed no part of the reasoning for dismissing the appeal.

Learning points for employers

Employers should continue complying with tribunal directions even where the other party is not engaging.

Persistent failures may justify taking advice on a strike-out application. Document missed hearings, unanswered correspondence, breaches of directions and resulting prejudice. Strike out remains a serious sanction requiring consideration of proportionality and less drastic alternatives.

Outstanding applications do not necessarily prevent strike out, but tribunals must still consider relevant evidence about disability. Evidence should explain how impairments affect participation and what adjustments would help.

For more information or advice, please get in touch with Matt Verrier in our Employment team.