Mrs S Afzal v The Governing Body of St John with St Mark Primary School and others: 2405731/2023 and 2404724/2024
EMPLOYMENT TRIBUNALS
Case No 2405731/2023, 2404724/2024
Between
Mrs S AfzalClaimantThe Governing Body of St John with St Mark Primary School and othersRespondent
Before
Employment Judge ChildeMr M Broomhead (instructed by Solicitor) for claimantMs Levene (instructed by counsel) for respondentDate 6 November 2024
JUDGMENT
[1]The application to strike out the claim is refused. The Tribunal will decide at the final hearing whether the claim was presented within the applicable time limit. The tribunal has concluded that the claimant’s claims do not have no reasonable prospects of success.
REASONS
Relevant Law
[2]The relevant parts of rule 39 of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, Schedule One state: 37 Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— 7.4C Preliminary hearing – deposit order and payment guidance note - rule 39. December 2020 (a) that it is scandalous or vexatious or has no reasonable prospect of success;[3]Only in an exceptional case will it be appropriate to strike out claims for having no reasonable prospect of success where the central facts are in dispute – for example, where the claimant seeks to establish facts that are totally and inexplicably inconsistent with the contemporaneous documents: Ezsias v North Glamorgan NHS Foundation Trust [2007] ICR 1126 (CA).[4]I have concluded in paragraphs 41 to 78 of the of the Case Management Order dated 6 November 2024 (the November CMO”), that the claimant’s allegations that she submitted her employment tribunal claim within three months of her claims of direct disability discrimination, direct race or religious discrimination and harassment related to race or religion, and victimisation and a failure to make reasonable adjustments as set out in paragraphs 50, 56 and 65 of the November CMO, or within such period as the employment tribunal thinks is just and equitable, have little reasonable prospect of success.[5]I do not find that the claimant has no reasonable prospects of showing that she submitted those claims within the relevant time limit. The claimant may be able to persuade a Tribunal at final hearing that those claims were submitted within time, as defined in section 123 Equality Act 2010.[6]I found in paragraph 72 of the November CMO that there are underlying disputes of fact in this case which I do not consider I can determine by summary assessment at this stage in proceedings. For this reason, I do not agree with Miss Levine's submissions that the claimant’s claims have no reasonable prospects of success on their merits alone.