The Claimant brought a claim of disability discrimination which, after a lengthy period of delay, was ultimately struck out on the ground that a fair hearing of it was no longer possible. The Claimant appealed the strike-out order (the first appeal). The Claimant also brought a claim for unlawful deductions from wages based upon a PHI scheme operated by the Respondent. Following her dismissal, she sought to amend the deductions claim to include wages she submitted were due in respect of a period of around 9 years after her employment had ended. The amendment application was refused inter alia on the basis that it had little prospect of success. The Claimant appealed that decision (the second appeal). The deductions claim in respect of the period when the Claimant was still employed by the Respondent proceeded to a full hearing. It was successful, on the merits, but the Claimant argued that the ET had erred in law in its interpretation of the PHI scheme by failing to take account of overtime payments and salary increases that she would have received had she remained able to work. She also argued that the ET had erred in its approach to a contractual annual 5% increase to benefit payable under the scheme by treating that increase as a fixed amount rather than as a percentage of the benefit being paid at the end of each year (the third appeal). The Respondent cross appealed in the deductions claim. It argued that the full extent of the Respondent’s contractual duty under the PHI scheme was simply to maintain a policy of insurance. That was not an obligation to pay wages on the basis of which a claim for unlawful deductions could competently be brought.

The EAT allowed the appeal in part. 1) The ET had not erred in concluding that the PHI scheme gave rise to an obligation on the Respondent to make payments to the Claimant which, whilst her employment was ongoing, fell within the definition of “wages”, and the cross appeal was accordingly refused; 2) The ET had not erred in concluding that the payments due under the scheme should be calculated only on the basis of basic salary, excluding overtime and salary increases that might have been received had the Claimant remained at work. It had, however, erred in its reasons in concluding that the 5% annual increase was a fixed sum based upon the amount of benefit paid in the first year of entitlement. Instead, the 5% increase should be applied to the amount of benefit being paid at the end of each year when entitlement continued, but as this did not affect the ET’s judgment, it could be dealt with by the ET when it assessed remedy, and the third appeal was therefore refused; 3) The ET had not erred in refusing the application to amend, and the second appeal was also refused; 4) The ET had erred in striking out the disability discrimination claim on the ground that a fair hearing was not possible. Before doing so, it should have permitted the Claimant to focus the disability claim (as it had been agreed at a case management discussion she would be allowed to) and thereafter heard evidence on the extent to which the quality of evidence about such a clam, as so focussed, would have been diminished by the passage of time. The first appeal was therefore allowed. The strike out order was quashed, and the disability discrimination claim was remitted to the tribunal to determine that aspect of the strike out application anew.