Dr M Kulczynska v AQA Education: 3307733/2024 Dr M Kulczynska v AQA Education: 3307733/2024
EMPLOYMENT TRIBUNALS
Case No 3307733/2024
Between
Dr M KulczynskaClaimantAQA Education RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge BoyesMs Henderson (instructed by solicitor) for respondentDate 19 January 2026
JUDGMENT
on a Preliminary Matter The Claimant’s complaint of direct race discrimination has no reasonable prospects of success and that complaint is struck out under rule 38(1)(a) of The Employment Tribunal Procedure Rules 2024. The Respondent’s application to strike out the Claimant’s direct disability discrimination complaint in reliance upon rule 38(1)(a) & (b) of The Employment Tribunal Procedure Rules 2024 is refused. Further case management orders regarding the Claimant’s direct disability discrimination complaint will be sent to the parties separately. The Proceedings[1]I apologise to the parties for the delay in providing this Reserved Judgment and for any inconvenience caused as a consequence of that delay.[2]The case was listed for a public preliminary hearing to deal with the Respondent’s application for strike out. There was also an application for a deposit order by the Respondent.[3]I had before me a preliminary hearing bundle of 60 pages. I also had copies of various emails from the Claimant enclosing medical evidence and various other documents and communications.[4]I had written submissions from both parties in relation to the Respondent’s strike out application. The Respondent’s application to strike out is dated 2 July 2025 and can be found at pages 58-60 of the preliminary hearing bundle. The Claimant’s submissions are not contained in the bundle. They were sent separately by email, are dated 22 July 2025. The parties also made oral submissions at the hearing.[5]The Respondent referred to a case in closing submissions that is relevant to central argument that the Respondent relies upon as to why the race discrimination complaint should be struck out. This was the case of Gwynedd County Council v Jones [1986] I.C.R. 833. Ms Henderson provided a link to a subscription service, but the Claimant would not have been able to access the case through that link. Therefore, in the interests of fairness, I ordered that a copy of that case be provided to the Claimant and Tribunal and the Claimant was given 7 days in which to read that case and provide further written submissions if she wishes to do so.[6]I therefore reserved my decisions on the applications for strike out and a deposit order.[7]Subsequent to the preliminary hearing, the Claimant has provided further written submissions in accordance with my order. I have read and taken into account those submissions when reaching my decision on the Respondent’s application. The claim[8]The Claimant undertook work for the Respondent, an examination and awarding body, as an examiner, from 1 April 2023 until 30 September 2023. Early conciliation started on 20 May 2024 and ended on 19 June 2024. The claim form was presented on 28 July 2024.[9]On 29 September 2023, the Claimant expressed an interest in providing services to the Respondent for the summer 2024 examination series. On 11 March 2024, the Claimant was informed by the Respondent that it would not be offering her a contract to provide services for the summer 2024 examinations.[10]The Claimant says she was discriminated against on grounds of race and disability. The Respondent’s defence is that the Respondent had not been satisfied with the services provided by the Claimant. The Respondent denies the Claimant was discriminated against.[11]The Claimant complains of direct race discrimination and direct disability[12]At the Case Management Hearing before Employment Judge Annand on 28 April 2025, the nature of the Claimant’s complaints were clarified and she confirmed that she complains about two separate matters.[13]The first matter is that she states that when her contract with the Respondent for 2023 came to an end, she was asked by the Respondent if she would like to continue working for them. She said that she would but then, when she asked about a new contract by email, in around August/September 2023, she was told she was not allowed to ask this. That she was told she was not allowed to ask this is the first matter that she complains about.[14]The second matter which the Claimant complains about relates to her being informed on 11 March 2024 that the Respondent would not be offering her a contract as an examiner for the summer 2024 examinations.[15]The Claimant is Polish. She asserts that she was discriminated against on the basis of race by Ms Collier, who is also Polish. She believes the reason that she was discriminated against is because the Claimant speaks Polish and German. Whilst Polish is her primary language (the language she spoke at home), some of her education was in German, and she asserts this is why she was discriminated against by Ms Collier. She says that Mrs Collier could not accept that the Claimant could use both languages.[16]In terms of her complaint of disability discrimination, at the case management hearing before Employment Judge Annand, the Claimant’s explained that she has a condition which causes sudden swelling, redness, and at times she has to be admitted to hospital. The Claimant said she had been recently diagnosed with chronic urticaria and angioedema /aneodema. She has a cyst on her kidney. The Claimant asserts that the reason that she believes that she had been discriminated against because of her disability is because she had informed the Respondent previously that she suffered from flare ups/attacks, and, if that happens, she would have to stop working immediately. The Claimant asserts that this may be one of the reasons that they did not offer her a new contract in March 2024.[17]At the preliminary hearing before me, I sought further clarification from the Claimant to ensure I understood the manner in which she relies upon the protected characteristic of race. The Claimant confirmed that she was born in Poland and that both of her parents are Polish. No one else in her family speaks German. She learnt to speak German as part of her education. This included her being part of an exchange programme which involved her staying with a family in Germany and a German student coming to stay with her family. The Response[18]The Respondent position is that the Claimant was not, at any time, an employee or worker engaged by the Respondent. It asserts that the Claimant was contracted on a self-employed basis.[19]Further, it submits that the claim was presented outside the primary 3 month time limit and that it would not be just and equitable to extend time.[20]The Respondent does not concede, that the Claimant has a disability for the purposes of the Equality Act 2010 (“EqA”).[21]The Respondent accepts that on 11 March 2024 it informed the Claimant that she would not be offered a contract to provide services in relation to the Respondent’s Summer 2024 examination services. It asserts that the reasons for this were that the Respondent had not been satisfied with the services provided by the Claimant during the 2023 examination series.[22]The Respondent denies that it has, at any time, discriminated against the Claimant on grounds of disability or on grounds of race, as alleged, or at all. Application for strike out[23]The Respondent applies to strike out the Claimant’s claim of direct race discrimination on grounds that the claim has no reasonable prospect of success because the Claimant’s argument that the reason for the alleged unfavourable treatment, being because she spoke both the Polish language and German language, does not equate to an argument of alleged unfavourable treatment because of race. It submits that the alleged facts disclose no arguable case in law and, even taken at its highest, the Claimant’s claim of direct race discrimination has no reasonable prospects of success. The Respondent’s position is that, for the purposes of this application, there are no issues of fact or evidence to be decided but that the Employment Tribunal will be required only to interpret section 9(1) EqA. In this respect the Respondent contends that, even if Claimant’s language abilities were the reason for the Respondent’s decisions (which it denies) the Claimant’s language abilities are dissociable from the Claimant’s race, nationality and national origins. The Respondent submits that Claimant’s language abilities are not inextricably linked to the protected characteristics of race, nationality or national origin. The Respondent relies rely on the cases of R (on the application of E) v Governing Body of JFS and another [2009] UKSC 15, Taiwo v Olaigbe [2016] UKSC 31 and Gwynedd CC v Jones [1986] I.C.R. 833 [EAT]. The Respondent also submits that the Claimant’s claim of direct race discrimination is vexatious as it has no basis in law. [I refer to this as Ground 1][24]Additionally, the Respondent submits that the Claimant’s claim of direct race discrimination is scandalous in that it is a misuse of the privilege of legal process in order to vilify others, namely the Respondent and another named individual. It submits that the Claimant has made repeated allegations of fraud against that individual (in the Claimant’s grounds of claim, her ‘amended grounds of resistance’ and in correspondence), the reason for the Claimant’s allegations being understood to be primarily because that individual is of Polish nationality and because the Claimant has a dislike and distrust of people of Polish nationality or national origin. [I refer to this as Ground 2][25]Further, the Respondent submits that the manner in which the proceedings are conducted by the Claimant is unreasonable and vexatious. It submits that, irrespective of the Claimant’s intentions, the effect of her misunderstanding of the jurisdiction of the Employment Tribunal, the issues to be considered by the Employment Tribunal in these proceedings, Employment Tribunal procedures and her failure to comply with guidance and requests from the Employment Tribunal is having an effect that the Respondent is being put to inconvenience, harassment and expense out of all proportion to any gain for the Claimant. The Respondent says that since the case management preliminary hearing in this case, the Respondent’s solicitors have received well in excess of 100 emails from the Claimant. In addition, at the preliminary hearing, the Respondent submitted that the way in which the proceedings have been approached by the Claimant in terms of type and number of documents that the Respondent has received has been overwhelming and is not limited to the medical conditions which the Claimant relies upon. This includes photographs and other documents that are not medical records. The Respondent submits that it is unreasonable to expect the Respondent to deal with level of documentary evidence and to decipher that evidence. [I refer to this as Ground 3][26]The Respondent applies to strike out the Claimant’s claim of direct disability discrimination on grounds that for the purposes of Rule 38(1)(b), the manner in which the proceedings are being conducted by the Claimant is unreasonable and vexatious. The Respondent relies upon the same reasons referred to in relation to Ground 2 above. [I refer to this as Ground 4][27]At the preliminary hearing the Respondent amended the basis upon which it relies upon Ground 4. It accepted that it had received some of the Claimant’s GP records. Whilst the Respondent maintains that the GP records provide no evidence that the Claimant was suffering from conditions which she relies upon at the relevant time, it accepted that this is issue that the Tribunal would need to hear evidence about.[28]In relation to the complaint of alleged unfavourable treatment in August/September 2023, the Respondent submitted in the original strike out application that the Tribunal should strike the Claimant’s complaints of direct race discrimination and direct disability discrimination on the grounds that the claims have no reasonable prospect of success because the Claimant has raised these complaints for the first time at the case management preliminary hearing on 28 April 2024 and that she has at no time provided any reason why these allegations were not raised in her claim form or at any time prior to 28 April 2024. At the hearing before me, the Respondent confirmed that it was not relying upon this ground. The Respondent confirmed that it does however maintain its position that this allegation is out of time.[29]In the alternative, the Respondent applies for a deposit order on the basis that each complaint has little prospects of success. I deal with that application by way of case management orders which will be issued separately. Claimant’s response to the strike out application[30]The Claimant has made submissions dated 22 July 2025 in response to the Respondent’s application for strike out. These submissions run to 15 pages. I have considered those submissions. The Claimant states that she objects to her complaints being struck out. The Claimant makes the following submissions: 30.1. Any delay that has occurred is as a result of her health conditions; 30.2. She has not made any major changes to her claim; 30.3. She sent various medical documents to the Respondent on the 17 June 2026 (proof of tracking provided). There were almost 200 pages of documents from her GP; 30.4. She is not the author of the medical evidence so if there are issues with it this is not something she can do anything about; 30.5. She does not understand why the medical documents are confusing to the Respondent; 30.6. Nationality discrimination is a subset of race discrimination, which refers to the unfair treatment of a person based on their race; 30.7. Language is linked to origin/nationality; 30.8. Whilst she was born in Poland, and her parents are from Poland, her part of Poland has always been a German territory, and her mentality is close to the German language, especially since she grew up in a Germanspeaking environment, studied German and is working and is still researching in German; 30.9. She states (at page 12) that she is of Polish origin and has Polish citizenship; 30.10. The Respondent did not tolerate the fact that German is her preferred language, even though she also speaks perfect Polish. Mrs. Collier and her friends do not tolerate German in their community. German speakers have been ill treated in Poland. She applied to work in German or Polish but was directed to work in the Polish language;[31]At page 8, the Claimant provides a list of medical conditions and notes against these conditions when evidence has been provided to confirm the health condition concerned.[32]The Claimant has made further submissions dated 3 August 2025 which run to 7 pages. I have considered those submissions. The Claimant’s further submissions include the following: 32.1. The Claimant relies upon European Community law and cites numerous international legal instruments relating to civil and political rights and race 32.2. The Claimant refers to the inclusion of language in Article 14 of the 1950 European Convention on Human Rights and Fundamental Freedoms (“the ECHR”) and in Protocol 12 to the ECHR. 32.3. The Claimant states that she has been tri/bilingualism from around the age of 3 (German-English-Polish). She submits that language defines a person's cognitive values and is a distinct social identity. She has renounced everything that is Polish and she does not want to have anything to do with the country. 32.4. The elements of language/nationality/origin are interconnected in the strict sense. The treatment that she alleges occurred therefore constitutes race[33]At the preliminary hearing the Claimant stated that she had sent all the documents that she understood were needed the Respondent. She was not aware of the Employment Tribunal’s procedures. Relevant Law - Strike Out[35]Rule 38 of The Employment Tribunal Procedure Rules 2024 provides that: (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 […][36]Establishing one of the specified grounds on which a response can be struck out is not in itself determinative of the application. A two stage approach is required as confirmed in Hasan v Tesco Stores Ltd EAT 0098/16. The Tribunal must first decide whether one of the grounds has been made out and, if it is, must then decide whether to exercise its discretion and order strike out. Rule 38 gives the Tribunal the power to strike out, it does not mandate it to do so.[37]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).[38]In Niedzielska v Faccenda Foods Ltd EAT 0140/20, it was emphasised that significant caution should be applied in relying excessively on how a litigant in person explains their case at a preliminary hearing without also carefully considering the pleadings, particularly where the litigant does not have English as a first language and requires an interpreter.[39]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 applications 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.[40]In Anyanwu v South Bank Student Union 2001 ICR 391, HL, Lord Hope said that “‘discrimination issues… should, as a general rule, be decided only after hearing the evidence.” In the same case, Lord Steyn stated “Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.” A strike out will only be appropriate in the ‘most obvious and plainest cases’.[41]In Mecharov v Citibank UKEAT/0041/16, Mitting J summarised the approach that should be taken when considering strike out in discrimination cases. He said that: “(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[42]In Javed v Blackpool Teaching Hospitals UKEAT 0135/17, the EAT decided that the Tribunal had been wrong to strike out the claimant’s complaints of race discrimination. The EAT commented that it is obvious that: “there will rarely be direct evidence of discrimination. Discrimination in many cases can only be inferred from the evidence; that is, all the evidence tested in cross-examination.”[43]In Javed, the EAT also considered the relevance of the claimant’s failure to raise a complaint of discrimination at an early stage and concluded that there are many reasons why it might be quite late in the sequence of events before discrimination is raised, concluding that this is a point which: “At best … could only potentially be relevant to weight, if and when the ET considered all the evidence in the round.”[44]The word ‘scandalous’, in the context of rule 38(1)(a), means irrelevant and abusive of the other side. It is not to be given its colloquial meaning of signifying something that is ‘shocking’ (Bennett v Southwark London Borough Council 2002 ICR 881, CA). A ‘vexatious’ claim or defence can be described as one that is pursued to harass the other side rather than with the expectation of success (ET Marler Ltd v Robertson 1974 ICR 72, NIRC).[45]As explained in Ahir v British Airways [2017] EWCA Civ 1392, there is no absolute bar to a strike out order in discrimination cases and there may be exceptional circumstances where it is warranted if the Tribunal is entirely satisfied that there is no reasonable prospects of the facts necessary to find liability being established. My Conclusions[46]In reaching my decision on the application for strike out I have taken account of the legal principles set out above, the overriding objective and the need for proportionality in litigation.[47]The Claimant’s submissions of 22 July 2025 (and various other documents that the Claimant has provided) refer to a wide range of issues, some of which are not in any way relevant to the strike out application or the proceedings before the Employment Tribunal. I refer in these reasons only to matters that are relevant to determining the strike out application.[48]Section 13(1) EqA provides that “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Under section 4 EqA, race is a protected characteristic. Section 9(1) EqA states that race “includes (a) colour, (b) nationality, and(c) ethnic or national origins”.[49]Whilst ‘race’ itself is added, the four grounds specified at section 9(1) EqA are identical to those previously used to define ‘racial group’ at section 3(1) Race Relations Act 1976. Therefore caselaw interpreting the meaning of that definition remains relevant to the interpretation of section 9(1) EqA. 50. ‘Language’ does not, in itself, fall within the definition of ‘race’ for the purposes of the EqA. During the introduction of the EqA there was discussion as to whether all not language should be included. Parliament decided that it should not. The reasons for this are set out The Equality Bill - Government response to the Consultation, July 2008, CM 7475.[51]However, whilst ‘language’ is not a protected characteristic under the EqA, the courts have found that there are some circumstances where less favourable treatment relating to language may amount to discrimination on the grounds of race. Circumstances in which language has been found to be material include where it was decided that not allowing a claimant to speak their own language was inherently discriminatory on the grounds of nationality (Dziedziak v Future Electronics Ltd EAT 0270/11). This was in a situation where the prohibition on the use of that language was intrinsically linked with the nationality of the claimant. The opposite conclusion was reached in Kelly v Covance Laboratories Ltd 2016 IRLR 338, EAT. This was because, on the facts, the treatment complained of was not intrinsically related to the claimant’s nationality.[52]The courts have also found that the requirement to speak English in the workplace, or to have a requirement of a minimum level of fluency, where it is not necessary to undertake the role concerned, might give rise to indirect discrimination.[53]In the case of Gwynedd County Council v Jones and Another [1986] I.C.R. 833 the Employment Appeal Tribunal (“EAT”) held that a common language is not sufficient on its own to create a distinct ethnic group. The EAT referred to the House of Lords’ decision in Mandla (Sewa Singh) and Another Appellants v Dowell Lee and Others I.C.R.385 Lord Fraser of Tullybelton said, at 390, “For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these:(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;(2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant;(3) either a common geographical origin, or descent from a small number of common ancestors;(4) a common language, not necessarily peculiar to the group;(5) a common literature peculiar to the group;(6) a common religion different from that of neighbouring groups from the general community surrounding it;(7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.”[54]In the cases of Onu v Akwiwu and anor & Taiwo v Olaigbe and anor [2016] UKSC 31, the Supreme Court decided that two migrant domestic workers who had been treated less favourably because of their vulnerable immigration status were not subjected to race discrimination. This was because immigration status was found not to be indissociably linked to the protected characteristic of race (nationality/ national origin). Whilst that case involved consideration of immigration status rather than language I have applied same underlying principles in this case.[55]The Claimant relies on Article 14 of the ECHR. Article 14 of the ECHR contains a list of characteristics which may result in unjustified discrimination in the enjoyment of the rights protected by the ECHR. However, it applies only to rights protected by the ECHR, not the EqA, and so it does not assist the Claimant. The Claimant also relies upon Protocol 12 to the ECHR. However, the UK is not a signatory to Protocol 12 so it does not have effect in England and Wales.[56]The underlying facts that the Claimant relies upon to assert that she can rely upon the protected characteristic of race are not in dispute. She is a Polish national. She does not have any other nationality. She was born in Poland. Her parents are Polish. She speaks German. Her parents do not speak German. She does not claim to be a member of a distinct ethnic group (such as an ethnic German living in Poland). She identifies with the German way of thinking. She speaks Polish, German and English.[57]Therefore, as the relevant facts are not in dispute, unusually, this is not a case which requires the Tribunal to make further findings of fact in respect of the race discrimination claim in order to determine if there is a protected characteristic and hence prospects of success.[58]I have carefully considered the legal principles and caselaw relating to the definition of race in the context of the Claimant’s case. Even taking her complaints at their highest, I find that the Claimant will not be able to show that any less favourable treatment that she may have received was because of the protected characteristic of race. This is because language cannot, in isolation from other characteristics, come within the definition of ‘race’ for the purposes of the EqA. I find that the Claimant’s language abilities are dissociable from the Claimant’s race, nationality and national origins. I therefore find that there is no reasonable prospect of the race discrimination claim succeeding because even if the Claimant were to show that she were subject to unfavourable treatment there is no reasonable prospect of her showing that it was because of race as defined by section 9(1) EqA.[59]However, that is not the end of the matter. Having shown that a ground for a complaint to be struck out has been made out, I must go on to consider whether it is appropriate to exercise my discretion to strike out the complaint.[60]I consider that this is a case in which I should exercise my discretion to strike out the complaint. This is because it would not be in accordance with the overriding objective, proportionate or fair to require the Respondent to defend a complaint which has no reasonable prospects of success. I therefore strike out the race discrimination complaint on that basis under rule 38(1)(a) of The Employment Tribunal Procedure Rules 2024.[61]As I have struck out the race discrimination complaint under ground 1, I need not determine ground 2 as this also relates to the race discrimination complaint.[62]The Respondent submits that the manner in which the proceedings are being conducted by the Claimant is unreasonable and vexatious.The Respondent states that the Appellant has sent in excess of 100 emails to the Respondent. However, I have not been provided with these emails so I cannot form a view as to the relevance of the content of those emails.[63]In addition, at the preliminary hearing, the Respondent submitted that the way in which the proceedings have been approached by the Claimant in terms of type and number of documents relating to medical matters that the Respondent has received has been overwhelming and is not limited to the medical conditions which the Claimant relies upon.[64]I do not know exactly what medical evidence was served on the Respondent on the 17 June 2026 as the Respondent has not included this evidence in the bundle. The Tribunal was provided with some medical evidence by the Claimant by email shortly prior to the preliminary hearing although it appears that this did not include all of the documents that had previously been sent to the Respondent (as the Claimant says she sent around 200 pages and I have not been provided with this many documents).[65]The Claimant explained to me at the preliminary hearing that she did not understand the Employment Tribunal process. On the basis of the information before me, it does appear that the Claimant is engaging with the proceedings and taking steps as best she can to comply with the Tribunal’s orders. The medical evidence that had been provided to me did not appear to be excessive. Whilst not all of it was relevant to the medical conditions relied upon in these proceedings, some of it was.[66]Applying the legal principles relating to strike out that I refer to above, I find that it has not been shown, on the evidence before me, that the manner in which proceedings are being conducted in this respect is unreasonable or vexatious.[67]However, even if I had decided that this ground was made out, I consider that it would have been disproportionate to strike out the claim on that basis and that the proportionate course of action would be to provide the Claimant with guidance regarding the future conduct of the case and for the conduct of the parties to be managed through appropriate case management.[68]The Respondent submits that the Claimant’s claim of direct race discrimination is scandalous in that it is a misuse of the privilege of legal process in order to vilify others including making repeated allegations of fraud against a named individual. Having considered the particulars of claim and submissions prepared for this preliminary hearing I do accept that the Claimant has made reference to irrelevant, and sometimes inappropriate, matters that are unconnected to these proceedings. Her pleadings, submissions and some of the correspondence that I have seen does include comments particularly regarding a certain individual which are inappropriate in manner and tone. They include allegations of fraud, criminal conduct, incompetence and mismanagement against that individual and the Respondent. There is extensive reference to matters which are irrelevant to, and have nothing whatsoever to do with, these proceedings.[69]However, on the evidence before me it has not been shown that the complaint of disability discrimination is one that is being pursued not with the expectation of success but rather to harass the Respondent or those employed by it. This ground is therefore not made out on that basis.[70]However, even if I had decided that this ground was made out, I consider that it would have been disproportionate to strike out the claim on that basis and that the proportionate course of action would be to provide the Claimant with guidance regarding the future conduct of the case and for the conduct of the parties to be managed through appropriate case management. Approved by: RECONSIDERATION JUDGMENT The Claimant’s application for reconsideration of the Tribunal’s Judgment dated 19 January 2026 striking out her race discrimination complaint is refused. The original Judgment is confirmed.
REASONS
[1]The Claimant applies for reconsideration of the Tribunal’s Judgment that her complaint of direct race discrimination has no reasonable prospects of success and is struck out under rule 38(1)(a) of The Employment Tribunal Procedure Rules 2024. The Application for Reconsideration[2]In email dated 31 January 2026, the Claimant sought reconsideration of the Judgment striking out her race discrimination complaint.[3]The grounds for reconsideration run to 11 pages. They refer to a wide range of issues, some of which are not in any way relevant to the reconsideration application or the proceedings before the Employment Tribunal. I refer in these reasons only to matters that are relevant to dealing with the reconsideration application which relates solely to the striking out of the Claimant’s race discrimination complaint.[4]At page 2, and throughout the grounds, the Claimant refers to indirect discrimination. At page 3 the Claimant states that certain documents were not provided before the decision was made on the strike out application. At page 4 (paragraphs 5 and 6) and page 9 (at paragraph 16) the Claimant makes submissions regarding the race discrimination complaint.[5]Much of what is written in the application for reconsideration relates to the Claimant’s health conditions and her disability discrimination complaints. For the avoidance of doubt, the Claimant’s disability discrimination complaints were not struck out and the proceedings in respect of those aspects of her claim continue. The Claimant also appears to refer to the making of a deposit order at page 3 of the application. Although a separate matter from the strike out Judgment, for the avoidance of doubt no deposit order has been made in this case.
The Relevant Law
[6]The rules relating to reconsideration applications are set out at 68 to 71 of The Employment Tribunal Procedure Rules 2024. Under Rule 69 an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The Claimant’s application has been submitted within the relevant time frame. The grounds for reconsideration are only those set out in Rule 68(1), namely that it is necessary in the interests of justice to do so. On reconsideration, the original decision may be confirmed, varied or revoked. If it is revoked it may be taken again.[7]Pursuant to Rule 70(2), if the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked that application must be refused and the parties informed of that refusal.[8]There is an underlying public interest in the finality of litigation. Reconsideration is therefore not a means by which a disappointed party to litigation can get a “second bite of the cherry” if they do not agree with the original decision. In (1) Flint v Eastern Electricity Board [1975] ICR 395 (High Court, Queen’s Bench Division) it states at 404: “But over and above all that (the interests of the parties), the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry.”[9]In Newcastle City Council v Marsden [2010] ICR 743 (EAT) it was said, at paragraph 17: “In particular, the weight attached in many of the previous cases to the importance of finality in litigation—or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry—seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal).”[10]In Ministry of Justice v Burton [2016] ICR 1128, the Court of Appeal said, at paragraph 21: “… the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily…”[11]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC stated that the wording ‘necessary in the interests of justice’ gives Employment Tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”. Conclusions on reconsideration application[12]In determining the strike out application, the Claimant’s submissions in relation to strike out, dated 22/7/2025, which ran to 15 pages, were before me and I took them into account when reaching my decision. I also had before me further submissions made by the Claimant dated 3/8/2025, which ran to 7 pages and h were provided following the order referred to at paragraph 5 of the reasons. The Claimant’s submissions were referred to and summarised at paragraphs 30 to 33 of the reasons.[13]Full reasons were provided at paragraphs 48 to 60 as to why the language cannot, in isolation from other characteristics, come within the definition of ‘race’ for the purposes of the Equality Act 2010. It is on that basis that the Claimant’s race discrimination complaint was struck out.[14]I am satisfied that the Claimant had a fair and reasonable opportunity to put her case regarding the discreet issue that resulted in her race discrimination complaint being struck out. She made lengthy submissions on both the 22/7/2025 and 3/8/2025.[15]The Claimant refers to indirect discrimination throughout her application for reconsideration. However, even if her race discrimination complaint has been incorrectly categorised (and I make no finding on that) this would not assist her because she would still have to demonstrate that any such complaint was founded on the protected characteristic of race.[16]Whilst the Claimant has made specific reference to the race discrimination complaint at page 4 (paragraphs 5 and 6) and page 9 (at paragraph 16) of her application, there is nothing within what is said within those paragraphs which would result in the original decision being varied or revoked.[17]Having carefully considered all of the points made by the Claimant, I am satisfied that there is no reasonable prospect of variation or revocation. Acting in accordance with rule 70(2), I do not consider that the interests of justice require that the Judgment on strike out of the race discrimination complaint or its reasons be varied or revoked. The Judgment and its Reasons are confirmed. Approved by: