The Claimant contended that her dismissal was unfair and that she had been subject to disability discrimination by being dismissed because of her sickness absence, resulting from the pain and swelling of her foot, in circumstances in which she contended that another employee was retained, despite a longer period of ill health absence. Without knowing the correct legal labels or statutory provisions, and in circumstances where English was not her first language, the Claimant was asserting claims that would be analysed by a lawyer as unfair dismissal, discrimination because of something arising in consequence of disability and, possibly, failure to make reasonable adjustments. The EJ acceded to the Respondent's request to order the Claimant to provide additional information but they did not clarify the claim. The EJ struck out her claim as having no reasonable prospect of success and the Claimant appealed.

The EAT allowed the appeal. In relation to the discrimination claim, this was not one of the exceptional discrimination cases in which strike out was appropriate. In relation to unfair dismissal, the EJ failed to take the Claimant’s case at its highest. It could not realistically be said that “there were no disputes as to fact”. The EJ treated aspects of the claim as if conducting a mini-trial. The EJ erred in law in striking out the unfair dismissal claim.