Mrs H Gunawardhana v Secretary of State for Justice: 2302198/2024
EMPLOYMENT TRIBUNALS
Case No 2302198/2024
Between
Mrs H GunawardhanaClaimantSecretary of State for JusticeRespondent
Before
Employment Judge LeithIn person for claimantMr R Dunn (instructed by counsel) for respondentMr Dunn (instructed by Counsel) for respondentDate 29 September 2025
JUDGMENT
[1]The claimant’s complaints of unfair dismissal, arrears of pay and ‘other payments’ are dismissed upon withdrawal.
REASONS
[1]This preliminary hearing was listed by Employment Judge Wilson to decide various applications. These reasons deal specifically with the applications for strike out or deposit order made by the Respondent, and for deposit order made by the Claimant.
Law
[2]Rule 38 of the Employment Tribunal Rules of Procedure 2024 deals with the Tribunal’s power to strike out a claim or response. It provides as follows: “38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal; Case No: 2302198/2024 10.8 Reasons – rule 62(3) March 2017(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).”[3]It is trite to say that strike out is a draconian step that should be taken only in exceptional cases.[4]In considering whether a claim has no reasonable prospect of success, the Tribunal must consider whether there is a “more than fanciful” prospect of the claim succeeding (A v B and another [2011] ICR D9).[5]The Claimant’s case must be taken at its highest. The tribunal must be particularly careful not simply to ask a litigant in person to explain their case while under the stresses of a hearing, but must take reasonable care to read the pleadings and any other key documents (Cox v Adecco and ors [2021] ICR 1307).[6]The EAT held, in HM Prison Service v. Dolby [2003] IRLR 694 EAT, at para 15, that the striking out process requires a two-stage test. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. Dolby was decided under a previous version of the Employment Tribunal Rules, but the important part of the wording of the relevant rule was the same, in that it provided that the Tribunal may strike the claim out.[7]Applications for a deposit order are governed by Rule 40 Employment Tribunal Rules of Procedure 2024 which (insofar as relevant provides as follows: “40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).” Case No: 2302198/2024 10.8 Reasons – rule 62(3) March 2017[8]The purpose of a deposit order is to weed out claims which are unlikely to succeed but do not meet the strike out criteria, and to give a clear warning that costs may be payable if a claim succeeds (Hemdan v Ishmail and anor 2017 ICR 486). The Tribunal retains a discretion even where the test in rule 39 is met.[9]In considering whether to strike out or make order a deposit, the Tribunal must bear in mind the overriding objective, in rule 3 of the ET Rules: “(1) The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense.”[10]I was referred by Mr Dunn to the familiar passage from Chandhok v Tirkey [2015] ICR 527 regarding the judgment of the Lord Steyn in Anyanwu – namely, that Lord Steyn was not setting out a blanket ban on strike-out applications succeeding in discrimination claims.[11]I do not need to set out the legal test for the allegations in respect of which a strike out or deposit order is sought in great detail. But it is relevant to note that in a complaint of victimisation, the test in terms of causation is “reason why”, rather than “but for”. That requires the Tribunal to consider the alleged victimiser’s reasons (whether conscious or subconscious) for acting as he or she did. It is not necessary for the protected act to the main motivation for the detriment, as long as it was a significant factor. In the context, as elsewhere in discrimination law, “significant” means “more than trivial”.
Background
[12]The claim was presented on 23 February 2024. The ET1 form was accompanied by a lengthy narrative particulars of claim. The claim was sent to the Respondent by the Tribunal on 16 May 2024. The deadline for presenting a response was 13 June 2024. Case No: 2302198/2024 10.8 Reasons – rule 62(3) March 2017[13]On 29 May 2024, the Respondent presented an unpleaded ET3 response. On 6 June 2024, the Respondent’s solicitors wrote to the Tribunal asking that that be disregarded, as it had been presented in error. A further response was then presented on 13 June 2024. The Tribunal wrote to the parties on 18 June 2024 accepting that response.[14]The Claimant wrote to the Tribunal on 19 June 2024 and on 29 October 2024 to seek to amend her claim.[15]On 2 February 2025 the Claimant wrote to the Tribunal applying again for permission to amend her claim, and applying for a deposit order against the Respondent. The application appeared to relate to what was said by the Claimant to be a failure by the Respondent to respond to the matters raised in her previous amendment applications.[16]A preliminary hearing took place before EJ Wilson on 8 May 2025. EJ Wilson discussed the issues with the parties. She annexed to her CMO the list of issues discussed and agreed with the parties.[17]EJ Wilson listed a further preliminary hearing to consider:a. An amendment application from the Claimant;b. The Claimant’s deposit order application; andc. Any application from the Respondent for a deposit order.[18]The Respondent applied for a strike out or deposit order in the alternative. The Respondent’s application[19]It is convenient to deal with the Respondent’s application first. That application relates to specific allegations within of the Claimant’s claim. Victimisation[20]The Claimant’s case is that she put in a grievance in August 2022, which was a protected act, and that as a result she was subjected to a performance management meeting on 7 and 8 February 2024.[21]Mr Dunn, on behalf of the Respondent, referred to four points which were said to undermine the Claimant’s case regarding the causal link between protected act and detriment:a. The time gap between the alleged protected act and the alleged detriment.b. The fact that the Claimant had raised two other grievances in the intervening period.c. The fact the individuals about whom she had grieved were not involved in the performance management meeting. Indeed Mr Rolfe, who apparently made the decision regarding the performance management meeting, was not even employed at the prison at the time that the Claimant raised the August 2022 grievance. Case No: 2302198/2024 10.8 Reasons – rule 62(3) March 2017d. The fact that there were aspects of the Claimant’s pleaded case which suggest that her position was that she was issued with the poor performance written warning after complaining about other matters (not the August 2022 grievance).[22]I was taken to minutes of a meeting between Mr Rolfe and the Claimant, as part of the performance management process. One of the matters taken into account within the performance management process was the Claimant’s relationships with colleagues. That is, part of the issue the Respondent said it had with the Claimant’s performance was about her relationship with her colleagues. The minutes of the performance management meeting showed Mr Rolfe referring in that context to the Claimant having raised a number of complaints against colleagues.[23]I bear in mind, of course, that the causal test in a victimisation claim is a “reason why” test, and that the (alleged) protected act does not need to be the main motivation for the detriment, as long as it is a “significant” (that is, more than trivial) factor. That is not a high bar, and of course when considering whether to strike out I must take the Claimant’s case at its highest[24]In my judgment, notwithstanding Mr Dunn’s careful and cogent submissions, I am not persuaded that there is no reasonable prospect of the Claimant showing that the August 2022 grievance was a more than minor or trivial factor in the performance management process. The Claimant’s grievances were part of what Mr Rolfe raised at the performance management meeting in terms of the Claimant’s relationship with her colleagues. Taken at its highest, that seems to me to be arguably capable of showing the requisite causal link.[25]For the same reason, I do not I consider that there is little reasonable prospect of showing the necessary causal link. Harassment (the Claimant’s belongings being searched)[26]The Respondent’s argument in respect of this allegation was that there is no reasonable prospect of the Claimant being able to show that the treatment in question was related to race. Mr Dunn noted that in the claim form, the Claimant referred to being a female member of staff and to the search being carried out by 5 male colleagues, but did not link the allegation to her race. The Respondent’s position was therefore that there is no reasonable prospect of the Claimant showing that the treatment was related to her race.[27]Looked at in isolation, I can see the force in that submission. But in my judgment, it highlights the importance of looking at the claim holistically. In respect of the complaint of direct discrimination, the Claimant compares her treatment to eight or more comparators. Mr Dunn made much of the fact that, in the Claimant’s claim, she refers on occasions to being a woman and to having been discriminated against by men – suggesting that on her own case the causal factor, if there was one, would be sex rather than race. But Case No: 2302198/2024 10.8 Reasons – rule 62(3) March 2017 of course the Claimant’s comparators are a mixture of men and women. On the Claimant’s case, what they have in common is that they do not share her race.[28]While it is right that Madarassay indicates that something more than a mere difference in treatment and a difference in protected characteristic is required in order to shift the burden of proof, it seems to me far from impossible that a difference in treatment with a number of different comparators could potentially provide that something more. Putting that another way, if the Tribunal found that the Claimant was treated less favourably than one or two white comparators, that on its own would not shift the burden of proof without something more. But if the Tribunal concluded that the Claimant was treated less favourably than eight white comparators, each in slightly different circumstances or situations, that may be a matter from which a Tribunal could properly draw an inference which could shift the burden of proof. And having reached such a finding, the Tribunal may also infer from that that the treatment referred to in the harassment allegation was related to the Claimant’s race.[29]I bear in mind also that discrimination claims are necessarily fact sensitive. That is the point Lord Steyn was making in Anyanwu.[30]Bearing that in mind, and bearing in mind the totality of the pleaded case, I am not persuaded that there is either no or little reasonable prospect of the allegation of harassment succeeding. Direct Race Discrimination[31]For essentially the same reasons, I reach the same conclusion on both allegations2.2.1 and2.2.2 of direct race discrimination. There is enough there to persuade me that there is something more than little reasonable prospect of the claims succeeding.[32]Mr Dunn made the point that the Claimant’s case on discrimination appears to refer to there being some “Machiavellian” character orchestrating the treatment in question. He referred to the rareness of such claims succeeding. While such claims are rare in practice, that does not mean that this one necessarily has no or even little reasonable prospect of succeeding. It is simply a very fact-sensitive decision which the Tribunal at final hearing will need to make.[33]So the Respondent’s application is dismissed The Claimant’s deposit order application[34]The Claimant’s original deposit order application was, in essence, predicated on a criticism of the Respondent’s failure to respond to her amendment application. Given that no permission had been granted, that is no basis to make a deposit order. Case No: 2302198/2024 10.8 Reasons – rule 62(3) March 2017[35]The Claimant’s application as it was pursued in the hearing was based in my judgment on the Claimant disagreeing with the factual contentions set out by the Respondent in its response. It was nothing more than a bald disagreement regarding the facts. The Claimant takes issue with what she describes as repeated failures by Respondent to follow its own policies. She may be right about that. But the question of whether she is right, and if so what inference the Tribunal ought to draw from the failures alleged, are matters properly to be determined by a Tribunal that has heard all of the evidence. Once again, discrimination claims are fact-sensitive. There is nothing in the Claimant’s application that persuades me that there is little reasonable prospect of the Respondent succeeding in any specific allegation made with the response.[36]So the Claimant’s application is dismissed. Approved by: