Café manager's disability discrimination claim struck out after employer's bankruptcy
A café manager with fibromyalgia saw her disability discrimination claim struck out after her employer entered bankruptcy and she failed to get court permission to continue proceedings.
1 min read · Last updated 18 May 2026
Case details
- #disability-discrimination
- #fibromyalgia
- #struck-out
- #bankruptcy
- #unfair-dismissal-lack-of-service
Key facts
- The claimant was employed as a café manager from 11 May 2021 to 18 June 2021.
- The claimant has fibromyalgia and was awarded PIP and DLA.
- The respondent entered into bankruptcy.
- The claimant did not obtain court permission to continue proceedings against the bankrupt respondent.
- The claim was struck out on 14 March 2023.
Timeline
-
Employment started
Claimant began working as a café manager for Jean Fox T/A Café 24.
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Dismissal
Claimant was dismissed by the respondent.
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Claim accepted
Tribunal accepted the claim after initial rejection.
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Response filed
Respondent filed an ET3 response via a representative.
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Preliminary hearing
Telephone case management hearing before Employment Judge Britton.
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Judgment sent
Judgment and orders from the preliminary hearing sent to parties.
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Opportunity to show cause
Tribunal gave claimant chance to explain why claim should not be struck out due to respondent's bankruptcy.
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Claim struck out
Employment Judge Heap struck out the claim because claimant failed to obtain court permission to continue against bankrupt respondent.
The legal issue
The tribunal had to decide whether the claim could proceed after the respondent entered bankruptcy without the claimant obtaining court permission under the Insolvency Act 1986.
The outcome
The tribunal struck out the claim on 14 March 2023 because the claimant failed to obtain court permission to continue proceedings against the bankrupt respondent.
The key reason was that once a respondent becomes bankrupt, any legal proceedings against them require permission from the court under section 285 of the Insolvency Act 1986. The claimant did not apply for or obtain such permission.
No compensation was awarded as the claim was struck out.
Lessons & takeaways
- If your employer becomes bankrupt, you must get court permission before continuing any tribunal claim against them.
- Short service (under 2 years) means you cannot claim unfair dismissal, but you may still bring discrimination claims.
- Keep the tribunal informed of any changes in the respondent's circumstances, such as bankruptcy, to avoid your claim being struck out.
- Even if you have a strong discrimination case, procedural requirements like obtaining permission can end your claim if not followed.
This case shows how procedural rules can derail a discrimination claim, even when the underlying facts might have merit. The claimant, a café manager with fibromyalgia, was dismissed after just five weeks of employment. She brought a claim for disability discrimination, arguing that her dismissal was linked to her condition. However, before the case could be heard, the respondent entered bankruptcy.
The tribunal struck out the claim because the claimant did not obtain court permission to continue proceedings against the bankrupt respondent. Under the Insolvency Act 1986, once a person is bankrupt, legal actions against them require permission from the court. This rule applies to employment tribunals as well. The claimant, who was representing herself, may not have been aware of this requirement.
What could have been done differently
The respondent's bankruptcy was a significant event that should have prompted the claimant to seek legal advice. If she had applied to the court for permission to continue, the claim might have proceeded. The tribunal gave her an opportunity to show cause why the claim should not be struck out, but she did not provide a sufficient explanation or take the necessary steps.
Why this matters
This case is a reminder that discrimination claims can be complex and involve procedural hurdles beyond the merits of the case. Claimants should be aware that changes in the respondent's financial circumstances, such as bankruptcy, can affect their ability to pursue a claim. Seeking legal advice early, especially when representing yourself, can help avoid such pitfalls. The outcome also highlights that short service does not bar discrimination claims, but other obstacles may still arise.
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