“An Employment Judge will conduct a preliminary hearing to identify the issues and to make case management orders including orders relating to the conduct of the final hearing. Your attention is drawn to the attached Agenda for guidance as to the types of Orders that will be considered and the information you will be required to provide at the preliminary hearing.”
“I am a layman and novice in this matter but I want to inform you in my lay terms on how I faced discrimination, how I was victimised, why it has happened and how to prove it.”
“In the meantime the First Respondent reserves its position as to any relevant applications regarding the Claimant’s claims.”
“As per the First Respondent's Grounds of Resistance, we consider that the legal basis of the claims being presented needs to be clarified as well as articulating which claims are presented against which Respondent.”
“Possible PH for strike out / deposit orders depending upon clarification of issues at PH on 18 September.”
“Not required as representative Respondents are formulating to strike out”
“Please do not strike out any element of case. The truth must come out of this process as it will provide justice and benefit country to manage racism and whistleblowing for better society.”
“53.— Scope of preliminary hearings (1) A preliminary hearing is a hearing at which the Tribunal may do one or more of the following— (a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing); (b) determine any preliminary issue; (c) consider whether a claim or response, or any part, should be struck out under rule 37; (d) make a deposit order under rule 39; (e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation).” (2) There may be more than one preliminary hearing in any case. [emphasis added] (a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing); (b) determine any preliminary issue; (c) consider whether a claim or response, or any part, should be struck out under rule 37; (d) make a deposit order under rule 39; (e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation).”
“56. When preliminary hearings shall be in public Preliminary hearings shall be conducted in private, except that where the hearing involves a determination under rule 53(1)(b) or (c), any part of the hearing relating to such a determination shall be in public (subject to rules 50 and 94) and the Tribunal may direct that the entirety of the hearing be in public”
“6. Irregularities and non-compliance A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following— (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 37; (c) barring or restricting a party's participation in the proceedings; (d) awarding costs in accordance with rules 74 to 84.” (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 37; (c) barring or restricting a party's participation in the proceedings; (d) awarding costs in accordance with rules 74 to 84.”
“30. It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union[2001] ICR 391 . The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A[2016] ICR 1121 , which is referred to in one of the cases before me, HMRC v MabasoUKEAT/0143/17 . 31. In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that: (1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant’s case must ordinarily be taken at its highest; (4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.” 32. Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v MethuenUKEAT/0024/11 , it was stated that in appropriate cases, claims should be struck out and that “the time and resources of the ET’s ought not be taken up by having to hear evidence in cases that are bound to fail.” 33. A similar point was made in the case of ABN Amro Management Services Ltd & Anor v HogbenUKEAT/0266/09 , where it was stated that, “If a case has indeed no reasonable prospect of success, it ought to be struck out.”
“50. The claimant was not professionally represented. He had, however, produced a detailed witness statement which, as I set out above, contained some material which might support an allegation of race discrimination. He also placed before the Tribunal other documents in which he attempted to set out his case. These included documents entitled “Additional information”, which are appended to the claim form and which contained some of the matters referred to in his witness statement. 51. In my judgment, the obligation to take the Claimant’s case at its highest for the purposes of the strike-out application, particularly where a litigant in person is involved, requires the Tribunal to do more than simply ask the claimant to be taken to the relevant material. The Tribunal should carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding that there is nothing of substance behind it. Insofar as it concludes that there is nothing of substance behind it, it should, in accordance with the obligation to adequately explain its reasoning, set out why it concludes that there is nothing in the claim.”
“39. Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail.”
“16. There is force in Mr Burns’s point. Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’. … 19. I have, of course, twice used the phrase ‘on the face of it’. That invites the obvious riposte that the whole problem with a strike-out is that the appellant has no chance to explore what may lie beneath the surface, in particular, by obtaining further disclosure and/or by cross-examination of the relevant witnesses. I am very alive to that. However, in a case of this kind, where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it.”
“8. So far as ground 5 was concerned, Mr Watson argued that Rule 37 imported a two stage test. The first stage was to consider whether any of the grounds (a)-(e) have been established. Thereafter, a Judge had to consider whether or not to exercise the discretion in favour of striking out. Support for that could be found in the case of HM Prison Service v Dolby[2003] IRLR 694 EAT. So, it was not sufficient to decide that one of the strike out grounds was made out. The Judge had addressed only stage one of the two stage approach and had accordingly erred in law. … 17. This leads me to ground 5. There is absolutely nothing in the Judgment to indicate that the Employment Judge paused, having reached the conclusion that these claim s had no reasonable prospect of success, to consider how to exercise his discretion. The way in which Rule 37 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so. That is why in the case of Dolby the test for striking out under theEmployment Appeal Tribunal Rules 1993 was interpreted as requiring a two stage approach.”
“14. I asked about the race discrimination claim. This was based on the Claimant’s Indian ethnicity. In one of his emails expanding on his claim, the Claimant said that this was “clever implicit racism” based on a colonialist view of India. It was not a nationality claim. 15. I asked what bad things had happened to him that he said were at least partly because of his Indian ethnicity. The Claimant said that Joseph Kavanagh had discriminated against him. He had reported to Joseph Kavanagh, who had fabricated a reason to get rid of him. The terms of the contract he had been offered were not right. He should have had a higher daily rate than before, and that had not happened. He was working in a small team and that meant more work, and the change from limited company status to employee meant less money. He had no reason to think that he had been treated any differently to anyone else. … 23. I asked the Claimant to return to his race discrimination claim. The Claimant said that he had been dismissed, but named 3 people who were white and had not been dismissed. He said that may have been because he was of Indian ethnicity, and that it was possible that Joseph Kavanagh may have benefitted financially in some unspecified way by so doing. 24. The Claimant had not previously raised this as an allegation, in his claim form, emails of26 August 2020 and07 September 2020 , or in his PowerPoint “walkthrough” of the case. The Claimant repeatedly said that he had ticked the boxes at 8.1 of the claim form whenever he could see a difference (in the sense of a protected characteristic), not because he had any sense of grievance related to that characteristic. The requirement for some evidence of a causal link between that characteristic and the detriment is absent in this claim. 25. I bear fully in mind the case law guidance. There are no core issues of fact to be decided.Taking the case at its highest this is at best a speculative claim based on the Claimant’s unhappiness at his role at HSBC ending. Even the claim form says only that it is “possible” that race was a factor. There is no reasonable prospect of the Claimant establishing facts from which a Tribunal might find that there was a taint of race discrimination in the non-selection of the Claimant for a new role with HSBC, or in his original dismissal. There is no reasonable prospect of success of any other race discrimination claim of the Claimant.”
“10. I asked why the Claimant thought any of his issues with HSBC were connected with religion. The Claimant said that it was a difference between him and others, and so he had ticked all the boxes where there was a difference. That was race and religion. I asked how religion was relevant to what happened to him with HSBC. The Claimant said that he did not eat meat and so there was a difference at lunchtimes. I asked the Claimant if he could identify anything about his claim to which religion was relevant, and he said that he could not. I said that I would strike out the religious discrimination claim, because it had no reasonable prospect of success. The Claimant said that he had no objection to that – it was a point of difference was all, and he had simply ticked all the boxes where there was a difference.”