Bar Manager with terminal cancer: tribunal refuses to strike out discrimination claims
An employment judge has refused to strike out disability discrimination claims brought by a bar manager with terminal lung cancer, ruling that factual disputes over reasonable adjustments during the pandemic must be heard at a full hearing.
1 min read · Last updated 18 May 2026
Case details
- #strike-out-application
- #disability-discrimination
- #reasonable-adjustments
- #covid-19
- #clinically-extremely-vulnerable
- #whistleblowing
Key facts
- The claimant was diagnosed with terminal lung cancer in May 2019.
- The claimant worked as Bar Manager from 1 January 2004 to 12 November 2021.
- The respondent applied to strike out the discrimination claims, arguing adjustments were unreasonable due to COVID-19 guidance.
- The employment judge found factual disputes precluding strike out, including whether the claimant was still undergoing chemotherapy during lockdown.
- The application to strike out was dismissed, and the case remains listed for an 11-day hearing.
Timeline
-
Employment started
Claimant commenced employment as Bar Manager.
-
Diagnosed with terminal lung cancer
Claimant diagnosed with terminal lung cancer, deemed a disability.
-
First adjustment request
Claimant requested reasonable adjustments, pre-lockdown.
-
COVID-19 lockdown
National lockdown began; respondent's premises closed.
-
Employment ended
Claimant's employment ended.
-
Claim presented
Claim received by Employment Tribunal.
-
Preliminary Hearing (EJ Smith)
Directions given and list of issues prepared.
-
Preliminary Hearing (EJ Tsamados)
Directions for 11-day hearing after 12 July 2023.
-
Strike out application hearing
Respondent's application to strike out discrimination claims heard and dismissed.
-
Judgment sent
Employment Judge Cheetham KC issued judgment dismissing strike out application.
The legal issue
The tribunal had to decide whether the bar manager's disability discrimination claims had no reasonable prospect of success, given the respondent's argument that any adjustments would have been unreasonable due to COVID-19 shielding guidance.
The outcome
The tribunal dismissed the respondent's application to strike out the discrimination claims.
The key reason was that the claims were fact-sensitive and required a full hearing to determine issues such as whether the bar manager was still undergoing chemotherapy during lockdown and what the respondent knew about her disability.
No compensation was awarded as this was a preliminary decision on strike out.
Lessons & takeaways
- Tribunals are very reluctant to strike out discrimination claims before a full hearing, especially when there are disputed facts about the employer's knowledge of the disability.
- Employers cannot rely solely on general COVID-19 guidance to argue that adjustments were unreasonable — they must consider the individual circumstances of the employee.
- A diagnosis of cancer automatically counts as a disability under the Equality Act 2010, so employers should not challenge that without strong evidence.
- If you have a terminal illness, keep a record of when you told your employer and any requests for adjustments — this can be crucial in a later claim.
What this case shows in practice
This case illustrates how tribunals approach applications to strike out discrimination claims before a full hearing. The bar manager, who had worked for the club for 17 years, was diagnosed with terminal lung cancer in May 2019. After the COVID-19 pandemic began, she made several requests for adjustments, including changes to her duties and not having to wear a mask. The respondent argued that any adjustments would have been unreasonable because government guidance said clinically extremely vulnerable people should stay away from the workplace.
However, the employment judge found that there were factual disputes that could not be resolved without hearing evidence. For example, it was not clear whether the bar manager was still undergoing chemotherapy during the lockdown period — a factor that would affect what adjustments were reasonable. The judge also noted that the respondent's argument that she was not disabled was "extremely difficult" given her cancer diagnosis.
What the respondent could have done differently
The respondent could have avoided this preliminary hearing by engaging with the bar manager's requests for adjustments on an individual basis, rather than relying on blanket COVID-19 guidance. A proper assessment of her specific circumstances — including her treatment schedule and the nature of her work — might have led to reasonable adjustments that could have kept her in work safely. Instead, the respondent now faces an 11-day full hearing, which is likely to be costly and stressful for both sides.
Why the result matters
This decision confirms that employers cannot use general public health guidance as a 'get-out' from their duty to make reasonable adjustments. Each case must be assessed on its own facts. For employees with serious health conditions, it shows that tribunals will protect their right to have their claims heard fully, even when the employer argues that adjustments were impossible. The case will now proceed to a full hearing where all the evidence will be examined.
Similar cases
Constructive dismissal claim survives strike-out bid despite disability finding
A former employee with 7 years' service saw his constructive dismissal and age discrimination claims survive a strike-out application, but his disability discrimination claims were dismissed after the tribunal found he was not disabled under the Equality Act.
Bus driver dismissed after long-term sickness absence: strike-out bid refused
A bus driver with 13 years' service was dismissed after being off sick for over a year. The tribunal refused to strike out her remaining claims of unfair dismissal and disability discrimination.
Support worker's constructive dismissal claim over PPE concerns fails
A support worker who resigned after raising COVID-19 PPE concerns lost her constructive dismissal and whistleblowing claims. The tribunal found no breach of trust and confidence.
Field assessor with hypertension wins victimisation claim after raising COVID safety concerns
A field assessor with 10 years' service who raised concerns about returning to work during the pandemic has won a victimisation claim against Vibrant Energy Matters Ltd. The tribunal found the company failed to properly handle her second grievance.