The Claimant was dismissed following about a year’s sickness absence, which had begun about five months after he had moved into a new role. He brought claims of unfair dismissal and of disability discrimination relating to the dismissal, and to aspects of what happened or did not happen after he moved into the new role. He relied upon mental health disabilities. Disabled status was contested and the claims were resisted on their merits. At a hearing two weeks before the full merits liability hearing was due to open, the ET struck out the claims on the basis of the Claimant’s non-compliance with orders and/or that the matter was no longer capable of fair trial. The Claimant appealed.

The EAT allowed the appeal. Notwithstanding that orders had not been fully complied with, and the Claimant’s challenging approach to the litigation, the ET did not reasonably conclude that the claims were entirely incapable of being tried at the listed hearing, and that there were no orders it could make that could reasonably be expected to secure that. It also did not purport to find, and could not reasonably have concluded, that the Claimant’s breach of orders or other conduct was such as to warrant or necessitate a strike out, even if a fair trial was still possible.