The summary below is reproduced from the The President's judgment

The ET had previously found the claimant was a disabled person for the purposes of the Equality Act 2010 and had upheld a claim of disability discrimination by reason of a failure to make reasonable adjustments. After the remedy hearing, the respondent had made an application for costs, which had led the claimant to make her own costs/preparation time application. The claimant had made clear the difficulties she continued to experience arising from her disability, and had sought accommodations in the form of early clarification of the respondent’s position and additional time for her to respond. Delays had, however, occurred in obtaining clarification that the respondent would not be relying on without prejudice documents before it then withdrew its application for costs. Faced with a truncated period for organising the ET bundle, the claimant had said she was unable to deal with this. At the hearing, the claimant had not prepared the bundle as directed and, having refused her application for a postponement, the ET found she had persistently failed to comply with ET orders, and proceeded to strike out her application for costs. The claimant appealed.

Held: allowing the appeal The ET had failed to make any finding as to whether the claimant’s failure to comply with ET orders was wilful or deliberate. Had it engaged with that question, there were a number of relevant matters to which it would have needed to have regard, which provided explanations for the claimant’s failings. Moreover, given the nature of the application it had to decide, there was no reason to think that the possibility of further delay should be determinative, particularly as it might have been possible to postpone the hearing to the second day of the two-day listing (and the documents to be considered at that hearing would already have been known to the respondent). There were also other alternative courses that the ET might have taken, which would also have been less draconian than a strike out. It had, however, failed to consider the relevant legal principles or to carry out the assessment required. Similarly, the ET had failed to demonstrate any engagement with the claimant’s requests for accommodations in preparing for the hearing. Had it done so, there were (again) a number of less draconian steps it might have taken, which would not have caused a substantive unfairness to the respondent. Whether viewed through the guideline principles relating to the striking out of a substantive issue in the case, or through the prism of fairness, having regard to the impact of the claimant’s health difficulties, the ET’s decision failed to show that it had engaged with the assessment required. That was an error of law, such that the decision to strike out the claimant’s application must be set aside.