John Grantham v Bournemouth, Christchurch and Poole Council

Where medical evidence about a disabled party’s impairments is relevant to a tribunal’s procedural discretion, the tribunal must consider its bearing on past non-compliance and on adjustments that could enable a fair hearing. Failure to do so is an error, but an appeal may still be dismissed if the evidence could not have affected the decision.

Strike-out for procedural default requires a proportionate assessment of fairness, including whether a fair trial can take place within the allocated trial window and the demands on the parties and tribunal. Disability may require additional time and resources, subject to what is reasonable. A party seeking relief from an unless-order sanction must provide evidence that addresses both the past default and the prospect of future compliance.

The claimant brought unfair dismissal and disability discrimination claims against the respondent council. Following repeated failures to clarify his claims and comply with case management orders, an unless order resulted in dismissal of the claims. In June 2021, Employment Judge Emerton allowed the unfair dismissal claim to proceed but left the other claims dismissed. After further non-compliance, Employment Judge Cadney refused to reconsider the dismissal of the other claims and struck out the unfair dismissal claim.

The claimant appealed both decisions. He argued that Judge Cadney had failed to take account of a psychologist’s letter diagnosing autism spectrum disorder and describing its effects on his planning, processing and communication. The central issue was whether that omission was an error and, if so, whether it could have affected either decision.

1. The appeal was dismissed. Employment Judge Cadney erred in exercising both discretions by failing to address how the psychologist’s letter bore on the claimant’s non-compliance and possible adjustments. The question was whether those errors could have affected the decisions.

2. In considering relief from an unless order under rule 38(2) of the Employment Tribunals Rules of Procedure 2013, the tribunal must make a broad assessment of the interests of justice. As explained in Thind v Salvesen Logistics Limited [2010] UKEAT 0487, relevant matters include the reason and seriousness of the default, prejudice, whether a fair trial remains possible and the importance of the unless order. No single factor is necessarily decisive.

3. Medical evidence may be relevant both to whether disability contributed to default and to whether adjustments could make future compliance and a fair hearing possible. The judgment applied the approach in Bryce v Trident Group Security Limited [2022] EWCA EAT 137. It also applied Hylton v Royal Mail Group [2015] UKEAT 0369: the claimant had to provide evidence explaining the past default and showing a real prospect of future compliance.

4. For strike-out following procedural default, the tribunal must assess proportionality as well as the possibility of a fair hearing. A fair trial within the allocated window is relevant, as are the delay and demands on the parties and tribunal. A disabled party may reasonably require additional time and resources, but fairness does not require unlimited expenditure. The psychologist’s letter explained some difficulties but did not account for the persistent and extensive defaults or identify a workable adjustment beyond more time, which had already been allowed. Mediation or dialogue could not be imposed on the respondent, and an iterative clarification process had effectively already been attempted.

5. Under Jafri v Lincoln College [2014] EWCA Civ 449, an appeal tribunal must remit following legal error unless the error could not have affected the outcome or the result is otherwise clear on the tribunal’s findings and undisputed facts. The letter could not have made a material difference to either decision. Both decisions were upheld.

1. Employment Appeal Tribunal — On 10 September 2026, dismissed the appeal and upheld the decisions below: [2026] EAT 135 .
2. Employment Tribunal — On 26 January 2022, Employment Judge Cadney refused reconsideration of the dismissal of the claimant’s other claims and struck out the unfair dismissal claim. No citation is stated.
3. Employment Tribunal — On 18 June 2021, Employment Judge Emerton set aside dismissal of the unfair dismissal claim but did not reinstate the other claims. The claims had previously been dismissed following non-compliance with an unless order.