Mr P Lakshmanan v NDK Construction Ltd: 6012109/2024
EMPLOYMENT TRIBUNALS
Case No 6012109/2024
Between
Mr P LakshmananClaimantNDK Construction LtdRespondent
Before
Employment Judge HeathIn person for claimantDate 5 August 2025
JUDGMENT
The respondent’s application of 27 March 2025 to strike out the claim is refused.
REASONS
[1]This was an open preliminary hearing listed at a case management preliminary hearing on 15 May 2025 presided over by EJ Harrington. The purpose of the hearing was to consider respondent’s application of 27 March 2025 to strike out the claim, and to make any further case management orders as appropriate. The respondent did not attend that hearing.
Procedure
[2]EJ Harrington has also ordered the claimant to provide further information about verbal and physical conduct he alleged against the respondent’s Mr Derza, which he provided.[3]This matter was listed as a floating case, but I was able to take this up at around 11.45. Ms Viera told me she was standing in for a colleague, but that she had notes about the hearing and she knew the purpose was to consider the strike out application.[4]I told the parties I had read the strike out application, all the annexes to it, and had read the claimant’s further information. I asked the parties if they had anything further to add, and heard what they had to say.
The law
[5]Rule 38 of the Employment Tribunal Procedure Rules 2024 ET Rules provides:- 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;[6]In Mechkarov v Citibank NA [2016] ICR 1121 the EAT summarised the principles that emerge from the authorities in dealing with applications for strike out of discrimination claims: ''(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.''[7]The guidance in Mechkarov followed from a line of authorities including Anyanwu v South Bank Students’ Union [2001] IRLR 305 and Eszias v North Glamorgan NHS Trust [2007] IRLR 603. Chandok v Tirkey [2015] ICR 527 shows that there is not a “blanket ban on strikeout application succeeding in discrimination claims”. They may be struck out in appropriate circumstances, such as a time-barred jurisdiction where no evidence is advanced that it would be just and equitable to extend time, or where the claim is no more than an assertion of the difference in treatment and a differencing protected characteristic. Eszias also made clear that a dispute of fact also covers disputes over reasons why events occurred, including why a decision-maker acted as they did, even when there is no dispute as to what the decision maker did.[8]In Ahir v British Airways plc [2017] EWCA 1392 the Court of Appeal held that tribunal’s should “not be deterred from striking out claims, discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger in reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context”.
Conclusions
[9]The claimant’s pleadings, including his Further information, set out a series of allegations of abusive language and behaviour, including the use of undoubtedly racial slurs, against Mr Derza. For its part, the respondent in its Response and its application to strike out, asserts that there was no such abusive or racist behaviour, and makes the point that there is no independent corroboration.[10]This is a classic case of one person’s word against another. The case law makes clear that I am to take the claimant’s claims at their highest, and am not to conduct a mini-trial. There is also a strong presumption in favour of hearing discrimination claims on their merits at a final hearing.[11]It may be that the claimant’s case is fundamentally undermined by the respondent at a final hearing by the respondent, and that his account is not accepted. It may be otherwise. But that is for the final hearing, and an assessment and balancing of the evidence is not the function I am carrying out today. Taking the claimant’s case at its highest it cannot be said that there is no reasonably prospect of the claimant’s claims succeeding.[12]The application to strike out is refused. Case Management[13]Neither party had any observations about further case management.[14]It occurs to me that paragraph 3.2.1 of the List of Issues created by EJ Harrington is to be read so as to include Incidents 1 to 7 of the claimant’s Further information as being the clarified acts of unwanted race-related conduct relied on by the claimant in his race-related harassment claim. Approved by: