Case Update – Strike outs for all claims for failing to provide full particulars for one claim

In a recent case, Mohammed v Guy’s & St Thomas’ NHS Foundation trust, it was held that it was an error of law to strike out an entire claim when only parts of it were not properly particularised.

The Claimant worked as a clinical research sister who submitted claims under disability and race discrimination. The factual allegations were set out plainly. For disability it was unclear which provisions of the Equality Act were relied on. An order was made for further particulars on 27 February 2019. The Claimant’s solicitors clarified the reasonable adjustments claim only on 13 March.

At first an  unless order was refused and a second application was then made. The Claimant was advised by the tribunal that strike out was to be considered if the information was not provided.

The Claimant then sought an extension to appoint new solicitors, the Respondent then made a third application and this time it succeeded, the Claimant was given 42 days to respond.

EJ Siddall made an Unless Order on 27 May 2020 stating “It is very clear that the claimant is struggling to understand the information she needs to provide and the tasks she needs to complete. However that is part of the tribunal process”. The information requested was not onerous or unreasonable. The entirety of the claim was struck out.

The Employment Appeal Tribunal however held that the judge should have struck out the claims which were non-compliant and allowed others (such as harassment and reasonable adjustments) to proceed. The Employment Tribunal Rules of Procedure Rule 38 provides that if an unless order is not complied with the claim or part of it shall be dismissed without further order. Failing to consider that some parts of the claim were capable of determination was an error of law.