Mr A Khan v Girls Learning Trust and A Kart: 2304490/2023

EMPLOYMENT TRIBUNALS
Case No 2304490/2023
Between
Mr. A KhanClaimant(1) Girls Learning TrustRespondent
Before
Employment Judge SmithDate 24 February 2025

REASONS

[1]The Claimant in this case brings three claims against the Respondents.a. a claim of direct race discrimination;b. discrimination arising from disability; andc. victimisation.[2]The claimant previously worked for Harris Academy as a teacher, but that employment came to an end, and I understand it is subject to separate proceedings.[3]The claimant then applied to Carshalton High School for Girls in response to an advert for a teacher of science. He applied in the early hours of Monday 23 January, the deadline being noon on 23 January. As such his application was in time. 1 of 4 © Crown Copyright 2025[4]The Claimant says that a subject access request that he made to the respondents shows that on 23 January, his application was considered, scored and he was not shortlisted. He says this was all done in a matter of hours, and that therefore there was an element of race discrimination involved in this case.[5]On 26 January, he received an email explaining that the shortlisting process was being delayed because Ofsted were inspecting the school. He then discovered from the SAR that there was further consideration of his application on 30 January, where, again, he was not shortlisted.[6]The Claimant says that this gap of a week between 23 January and 30 January and the email of the 26 January shows that his previous employer, Harris Academy, was being contacted in in relation to this job for a reference. He says this is common practice amongst schools, and that Harris Academy had previously given negative information to other schools that sought a reference in relation to him.[7]He says that they told other schools that he lost his job with them for a failure to complete probation, or alternatively that they weren't prepared to give any reference (which he argues reflects negatively on him as a candidate).[8]The Claimant is very strongly of the view that during these seven days Harris Academy told the Respondent about his disabilities, which he had not disclosed to the Respondent in the application process, and also that he was bringing claims for race and disability discrimination against Harris Academy.[9]The Respondent denies any contact with Harris Academy, and there is nothing in the subject access request to confirm this, although, as the Claimant says, this was likely to be a telephone call and not noted, therefore there wouldn't be any records.[10]The Respondent also denies that there was any element of racial discrimination. They say that four applicants applied for the job. Of these applicants two defined themselves as white, one as Asian (the Claimant), and one as black. Of those applicants, the two who scored highest were shortlisted, that being one black person and one white person. Essentially, the claimant, who defines himself as Asian and a white candidate were rejected at shortlisting stage.[11]In discussion during the hearing the claimant understandably conflated his claims against Harris Academy and other employers who rejected his applications with this claim. They do turn on similar facts, and I have some sympathy for him there, but he complains in his skeleton argument about Harris Academy not disclosing information.[12]In relation to these proceedings, they are not required to disclose any information. There are no orders requiring them to disclose information for the purpose of this claim. Strike-out[13]I was taken through the case law, and it was common ground that Employment Tribunals should be extremely careful when striking out discrimination claims. Reference was made to Anyanwu v South Bank Student Union [2001] ICR 391, 2 of 4 © Crown Copyright 2025 [2001] UKHL 14. The key point there being that discrimination claims often turn on oral evidence and therefore strike out is not usually appropriate. However, it is not a blanket ban on discrimination claims being subject to strike-out.[14]I refer here to Chandok v Tirkey UKEAT/0190/14/KN where Langstaff J confirmed that this caution stopped short of a blanket ban on strikeout applications succeeding in discrimination claims. He said that there may still be occasions wherein the claim can properly be struck out. This could be where, for instance, there is a time bar to jurisdiction and no evidence is advanced that it would be just and equitable to extend time, or where on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic.[15]As Mummery LJ sets out in Madarassay v Nomura International PLC [2007] EWCA Civ 33 the Claimant must show a prima facie case meaning that a “reasonable tribunal could properly conclude from all the evidence before it, that on the fact of it, a case of discrimination is made out.” Langstaff J referred to this test when considering whether, in a case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic.[16]Therefore, whilst the Claimant objected to the Respondent’s reference to the test in Madarassay, I find that it is a relevant test I have to consider at this point. Essentially, will the claimant get over that test?[17]The test for strikeout is set out in rule 38 of the Employment Tribunal Procedure Rules 2024. This strikeout is being requested under Rule 38(1)(a) which is that it is scandalous or vexatious or has no reasonable prospects of success.[18]It is submitted by the Respondent that there are no reasonable prospects of success in relation to the race discrimination. They say that the something else required by Lord Justice Mummery isn't there. In relation to the disability and victimisation claims, the Respondent is extremely clear that they did not speak to Harris Academy at any point during this process before making a decision not to shortlist the Claimant. They argue that essentially this is a fanciful fishing expedition. They say that there is a vacuum that the Claimant has sought to fill with an explanation which is not supported by the evidence. They say that it is baseless speculation.[19]Taking the claimants case at its highest, I find that it is more likely than not that the claimant is not going to succeed in these claims. But the test for a strikeout is whether there's no reasonable prospect of success. When I consider the case law, I'm not satisfied that the claimant has no reasonable prospect of success.[20]In relation to the direct race discrimination, there is some merit in the Claimant's argument that in cross examination of the people who did the scoring, some evidence of discrimination or bias may come to light.[21]The Claimant said that scoring sheets are a pretext for discrimination. He relies on a first instance decision of Mrs C Burton-York v Douay Martyrs Catholic Secondary School and Roman Catholic Diocese of Westminster 3314332/2019. I do not accept that scoring sheets are always a pretext for discrimination, but I do accept that it is arguable that sometimes they could be used to cover up bias, whether 3 of 4 © Crown Copyright 2025 conscious or unconscious. That is a question which is going to turn on cross examination and reflects a dispute as to the facts in this case. Therefore, I’m not going to strike out the race discrimination claim.[22]I then move on to the claims of discrimination arising from disability and victimisation. Again, I think it is more likely than not that the Claimant will fail to succeed in his case. The case he is putting forward is that there was a discussion with his previous employer which was not noted in documentary evidence. I find that this argument is not out of the realms of possibility. It is another matter which should be tested in cross examination.[23]This point concerns both the discrimination and victimisation points, and I find that I should not strike out either of those claims.[24]However, in relation to each of those three heads of claim, I do find that the Claimant has little reasonable prospect of success. I find that the Claimant is unlikely to find evidence, be that documentary or thought cross examination to get over the burden. Therefore, in relation to each head of claim, I make a deposit order of £1,000. D J Wright 5 February 2025 24 April 2025 By C Clarke-Williams ……...…………………….. 4 of 4 © Crown Copyright 2025