Mr G Whelan v Salford Software Ltd and Proofid Ltd: 2400849/2024 and 2401582/2024
JUDGMENT
[1]The application to strike out the sex discrimination claim is refused. The claim is not struck out.REASONS
[1]I heard the respondents’ application to strike out the claimant’s sex discrimination claim. The respondents’ counsel made her submissions that the claim should be struck out. The claimant’s representative explained why it was she said it should not be. I briefly adjourned to reach my decision, before returning and informing the parties of my decision and the reasons for it.[2]I have the power to strike out the claim or a part of it, under rule 38 of the Employment Tribunal Rules of Procedure 2024. The respondents need to persuade me both that the reason for strike out set out in rule 38 has been met and that I should exercise my discretion to strike out the complaint. The respondents contended that the sex discrimination complaint should be struck out because it has no reasonable prospect of success (under rule 38(1)(a)).[3]The respondents’ counsel referred me to the case of Cox v Adecco UKEAT/0339/19. That contained important guidance about determining such an application. As the respondents’ counsel highlighted, in the Judgment the Employment Appeal Tribunal said that “No-one gains by truly hopeless cases being pursued to a hearing”.[4]What was also said in that Judgment was that: “Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate; If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate; The Claimant’s case must ordinarily be taken at its highest”[5]There are some factual issues in the claimant’s sex discrimination claim including: 5.1. Whether the claimant and Ms Chatten were in materially the same circumstances; 5.2. If so, whether they were treated differently; and 5.3. If not, whether a hypothetical female comparator would have been treated in the same way.[6]Whether the reason for any difference in treatment was sex, will also be a factual issue to be determined.[7]Relevant to the determination of those issues will be whether the claimant was dismissed for dishonesty (or perceived dishonesty), or for something else.[8]Those are factual issues. The determination of the sex discrimination case will turn on those factual issues. I could not say at this point without hearing any evidence that the claim (or any part of it) has no reasonable prospect of success. I would emphasise that the test is whether it has no reasonable prospect of success.[9]As a result, I decided that the sex discrimination claim should not be struck out.