Employment Judge LloydMs Amy Rollings (instructed by Counsel) for claimantMr Kashif Ali (instructed by Counsel) for respondentDate 31 July 2025
JUDGMENT
[1]The application for strike out and deposit order in respect of the claim for disability discrimination is refused.[2]The application for a deposit order in respect of the claim for disability discrimination is refused.
REASONS
[3]This was a preliminary hearing which was held to consider whether the Claimant’s claim for disability discrimination should be struck out and/or a deposit order should be made as the this part of the Claimant’s claim has no reasonable prospect of success. Judge Tobin directed that a preliminary hearing should take place to consider the merits of the claim for disability discrimination following a case management hearing on 25 January 2024. Bothe parties were represented by Counsel today. I was provided with a bundle of documents for use at today’s hearing which ran to 493 pages. Both parties made submissions. RELEVANT FINDINGS OF FACT FOR THIS HEARING[4]In October 2022, it became apparent to the Respondent that the Claimant had not arranged for three company vehicles to be road taxed. The Claimant apologised to his manager and no further action was taken at this point.[5]In January 2023, the Claimant found out his wife had terminal brain cancer. He took some time off from work to support her. At the end of January 2023, the Respondent began to work on putting the Claimant on a performance improvement plan (PIP). In February 2025, the Respondent removed his access to the Respondent’s email account. The Claimant told his manager on 20 March 2023 that he did not feel included at work. He did not receive a reply from his manager to emails he sent enquiring about a replacement company car.[6]The Claimant claims unlawful direct discrimination under section 13 of the Equality Act by way of associative discrimination, as well as unfair dismissal and a claim for notice pay. This judgement is in relation to the disability discrimination claim only in line with Judge Tobin’s case management orders. THE LAW Strike out
THE LAW
[7]Rule 37 of the Rules provides that: “(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 –(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 respondent (as the case may be) has been scandalous, unreasonable or vexatious; ... (e) That the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response...”[8]The EAT held that the striking out process requires a two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores Ltd UKEAT/0098/16. 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. In Hassan Lady Wise stated that the second stage is important as it is a fundamental cross check to avoid the ending prematurely of a claim that may yet have merit.[9]Strike out is a draconian sanction and not one that should be applied lightly. Tribunals should be particularly cautious about exercising their power to strike out badly pleaded claims brought by litigants in person who are not familiar with articulating complex arguments in written form on the ground that they have no reasonable prospect of success (Mbuisa v Cygnet Healthcare Ltd EAT 0119/18).[10]It will generally not be appropriate to strike out a claim where the central facts necessary to prove the case are in dispute. It is not the function of a tribunal in such an application to conduct a mini trial. The proper approach is to take the Claimant’s case at its highest as it appears from their ET1 unless there are exceptional circumstances (North Glamorgan NHS Trust v Ezsias [2007] IRLR 603).[11]The Employment Appeal Tribunal, in Abertawe Bro Morgannwg University Health Board v Ferguson [2013] ICR 1108 commented that whilst in some cases strike out may save time, expense and anxiety, in cases that are fact sensitive, the circumstances in which a claim is likely to be struck out are rare.[12]In Cox v Adecco and ors [2021] ICR 1307 the Employment Appeal Tribunal gave guidance to Tribunals dealing with strike-out applications against litigants in person. It held that when considering strike out of claims brought against litigants in person, the claimant’s case should be taken at its highest and the Tribunal must consider, in reasonable detail, what the claims and issues are. A Tribunal should not strike out a claim where it does not know what the claim is. There should, therefore, be a reasonable attempt at identifying the claim and the issues before considering strike out. The EAT also said that, if the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual tests that apply to amendments. Deposit Orders[13]The power to make Deposit Orders is contained in Rules 39 of the ET Rules: “(1) Where at a preliminary hearing (under rule 53) the Trib Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit...”[14]The rationale of a deposit order is to warn a claimant against pursuing claims with little merit, which may leave them open to a risk of costs should they proceed with the claim and lose on the same basis as identified as the reason for the making a deposit order.[15]The purpose of a deposit order is not to make it difficult to access justice or to affect the strike out through the back door. The tribunal is to conduct a summary assessment of the claim and not conduct a mini-trial of the facts (Hemdan v Ishmail [2017] IRLR 228). RESPONDENT’S SUBMISSIONS[16]The Respondent’s representative agreed today that the test of whether the disability discrimination has no reasonable prospect of success is a high threshold.[17]If the Tribunal considers that the claims have little reasonable prospect, the Respondent sought a deposit order, under Rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”).[18]The Respondent argued, in summary, that the Claimant and his manager had a good working relationship as shown by text messages they exchanged. It is unlikely the Respondent would have chosen to dismiss the Claimant as his wife was ill. The PIP was put in place before the Respondent knew about his wife’s illness. The Respondent had genuine concerns about the Claimant’s performance. The comparator chosen by the Claimant, Mr Matthews, is not appropriate as the Respondent did not know about his actions when Mr Matthews was employed. The Respondent allowed the Claimant to withdraw his resignation. The Claimant admitted most of the allegations of misconduct. The disciplinary investigation was thorough. CLAIMANT’S SUBMISSIONS[19]The Claimant resisted the Respondent’s application. The Claimant pointed out the delay between his failure to tax the vehicles in October 2022, and the investigation into this matter in May 2023. The Respondent stopped the Claimant from being able to access his emails. This was described by his manager as being “temporary at the moment”. The Claimant did not receive a reply to his emails about a replacement company car. The Claimant had told his manager about his wife’s cancer diagnosis in January 2023. The actions the Claimant complains about postdate his notification of his wife’s illness. CONCLUSIONS Strike out
CONCLUSIONS
[20]In order to strike out the claims, I need to be certain that they have no reasonable prospect of success.[21]Having considered the claim and response, and the submissions of both parties, I am not satisfied that there are no reasonable prospects of the claim succeeding. There are clear disputes of fact on key issues which are not capable of determination otherwise than by hearing and evaluating the evidence.[22]There is a possibility that, if the facts are established in evidence, this may lead to a finding in the Claimant’s favour. The Respondent’s view may prevail but it is an issue that must be decided once the factual disputes are resolved. Whether or not that has been done is a decision better taken after evidence has been heard, rather than purely on the basis of pleadings.[23]Accordingly, those issues cannot in my view be resolved without the hearing of evidence and I am therefore not persuaded that either claim has no reasonable prospect of success such that the Respondent’s application to strike them out must be refused. Deposit Orders[24]I am also not, I consider, able either to make a judgment that the claim has little reasonable prospects of success, for the same reasons similar in respect of strike out. In view of the importance and number of points that appear to be in conflict I cannot find that the claimant has little reasonable prospect of success and I make no deposit orders.