Miss R Sivakumar v Overstone Park School Ltd and Mrs M Brown: 3304497/2024

EMPLOYMENT TRIBUNALS

Case No 3304497/2024

Between

Miss R SivakumarClaimant

(1) Overstone Park School Limited (2) Mrs M BrownRespondent

Before

Employment Judge Davey

Date 15 September 2025

JUDGMENT

[1]The respondents’ application to strike out the claimant’s six complaints under s13 Equality Act 2010 is refused.

[2]The respondents’ application to strike out of the claimant’s complaint that the first respondent failed to provide a s1 statement of particulars of employment is refused.

[3]The respondents’ application to strike out the complaint that the first respondent failed to provide itemised pay statements was not presented within the applicable time limit and is struck out. The claimant has no reasonable prospect of showing that the complaint was brought in time or within such further periods as was reasonably practicable.

REASONS

[1]The respondents applied for strike out, or in the alternative deposit orders, of all the complaints made by the claimant and which are set out in paragraphs 2.2.1, 2.2.2, 2.2.3, 2.2.4. 2.2.5, 2.2.6 (direct discrimination),4.1 (failure to provide a s1 statement of particulars of employment) and

4.2 (failure to provide itemised pay statements) of the case summary in the Record of a Preliminary Hearing on 26 August 2025.

[2]In summary, the respondent argued that ‘even taking the claimant’s pleaded case at its highest, it is legally and factually unsustainable’. Detailed reasons were provided in a skeleton argument which were noted though will not be repeated here. The claimant defended the respondents’ application, ostensibly arguing that her ‘claims have a reasonable prospect of success’.

[3]Rule 38(1) of the Employment Tribunal Procedure Rules 2024 provides: 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; (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).

[4]For the purpose of the respondents’ strike out application, only Rule 38(1)(a) is relevant.

[5]A two-stage approach for determining whether to strike out a claim or response is required as confirmed in Hasan v Tesco Stores Ltd EAT 0098/16. The Tribunal must first decide whether any of the grounds under Rule 38(1) of the Employment Tribunal Procedure Rules of Procedure 2024 (the Tribunal Rules) are met and if so, whether the Tribunal should exercise its discretion and strike a complaint out.

[6]Tribunals should be careful before exercising their power to strike out complaints that have been poorly articulated by litigants in person Mbuisa v Cygnet Healthcare Ltd EAT 0119/18.

[7]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 that strike out is not a substitute for good case management and that the Tribunal must consider, in reasonable detail, what the claims and issues are.

[8]Strike out is a draconian sanction and not one to be used too lightly. In Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases.

[9]I have considered the above authorities, the overriding objective and the requirement for proportionality in determining the respondents’ application for strike out.

[10]I made it clear to the parties that the purpose of the hearing today, with reference to the respondents’ applications was to make a decision about whether to strike out would be based on the pleaded case and the issues, as confirmed at the last hearing and would not involve hearing evidence under oath. My questions to the claimant were with specific reference to the content of her claim form and the issues in her case. The claimant’s complaints and the issues in the case were agreed at a separate case management hearing on 26 August 2025. I am satisfied that appropriate case management proceeded the determination of the respondents’ applications.

[11]I refused the respondents’ application to strike out the discrimination complaints set out above (2.2.1 to 2.2.6 in the list of issues). In summary, these are discrimination claims so strike will only be appropriate for the most obvious and plain cases with reference to these complaints, many of the factual matters are disputed so will require consideration of the evidence at a final hearing and the claimant has to date, been represented by a lay person so may not have presented her complaints in the best light. Having taken the claimant’s discrimination complaints at their highest, I concluded that the first part of the two-part test was not met.

[12]I determined that three of the claimant’s six discrimination complaints (detailed in the list of issues as 2.2.1, 2.2.2 and 2.2.6) had little reasonable prospect of success. My reasons are set out separately in the deposit order.

[13]Turning to the claimant’s other complaints. I struck out the claimant’s complaint about whether ‘the respondent failed to provide the claimant with itemised pay statements for the months of June 2023 and July 2023’ because it was out of time. The claimant’s last statement that was allegedly not provided should have been issued at the end of July 2023. The claimant did not contact ACAS until 8 March 2024. The complaint was not presented to the Tribunal within three months (plus early conciliation extension) of the act complained of. The claimant’s reason for the delay was that she was dealing with the matter directly with the school. I concluded that it was reasonably practicable for the claimant to submit this complaint within the time limit and she failed to do this. I struck out this complaint because it has no reasonable prospect of success. Further, the Tribunal has no jurisdiction to hear it because it is out of time.

[14]Turning to the claimant’s complaint about not being provided with a statement of particulars of employment/contract of employment. I did not strike this out because this is evidence sensitive and does not satisfy the requirements under Rule 38 of the Tribunal Rules. Approved by: