Ms R Dias v Lloyd Baker Leather Ltd (Paul Costelloe, Swindon): 6021255/2025
EMPLOYMENT TRIBUNALS
Case No 6021255/2025
Between
Ms R DiasClaimantLloyd Baker Leather Ltd (Paul Costelloe, Swindon)Respondent
Before
Employment Judge LiveseyMr Philp (instructed by solicitor) for respondentDate 5 March 2026
JUDGMENT
The Claimant’s complaints of unfair dismissal and discrimination on the grounds of marriage or civil partnership are dismissed under rule 38 as having no reasonable prospects of success.
REASONS
[1]By a claim form presented on 7 June 2025, the Claimant brought the following complaints of unfair dismissal and discrimination on the grounds of marriage or civil partnership.[2]The Claimant lacked two years’ service and, on 6 February, the Respondent applied to have the listed Case Management Preliminary Hearing converted into a Preliminary Hearing to consider its application to strike out. The Tribunal agreed. Relevant principles[3]Under rule 38 of the Employment Tribunal Procedure Rules 2024, a tribunal could strike a claim out if it appeared to have no reasonable prospect of success. In other words, that it was “bound to fail” (Twist DX-vArmes UKEAT/0030/20/JOJ). It was a two-stage process; even if the test under the rules was met, a judge also had to be satisfied that his/her discretion ought to have been exercised in favour of applying such a sanction (HM Prison Service-v-Dolby [2003] IRLR 694).[4]Striking out a claim was a draconian step and numerous cases had reiterated the need to reserve such a step for the most clear and exceptional of cases (for example, Mbuisa-v-Cygnet Healthcare Ltd UKEAT/0119/18).[5]The importance of not striking out discrimination cases save in only the “most obvious and plainest cases” had been reinforced in a number of cases, particularly Anyanwu-v-South Bank Students Union [2001] UKHL 1764 and, more recently, in Xie-v-E’Quipe Japan Ltd [2024] EAT 176 in which the public interest in determining such cases at final hearings was reiterated. In Balls-v-Downham Market School [2011] IRLR, Lady Justice Smith made it clear that "no” in the old rule 37 meant "no”. It was a high test.[6]In Ezsias-v-North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal stated that it would only have been in exceptional cases that a claim might have been struck out under the rule where there was a dispute between the parties on the central facts. In such a case, the Claimant’s contentions must ordinarily have been be viewed at their highest. The approach, was considered in detail in Mecharov-v-Citibank [2016] ICR and Xie, above, as follows;(a) Only in the clearest case should a discrimination claim have been struck out;(b) Where there were core issues of fact that turned to any extent on oral evidence, they should not have been decided without hearing oral evidence;(c) The claimant's case must ordinarily have been taken at its highest, not only in relation to the facts, but the reasonable inferences that might have been drawn from them (Xie above);(d) If the claimant's case was "conclusively disproved by" or was "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may have been struck out;(e) A tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[7]Discrimination claims were not however, immune from the possibility of being struck out under the rule. In such cases, it was not sufficient for a claimant to demonstrate that there was a difference in treatment and suggest that that alone could have been because of his protected characteristic (see Chandok-v-Tirkey [2015] ICR 527 at paragraph 20). The court in Igen-v-Wong [2005] EWCA Civ 142 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could have concluded that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicated a possibility of discrimination. They were not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. Referring to the Court of Appeal's decision in Ezsias, the EAT (Langstaff P) in Romanowska-v-Aspirations Care Ltd UKEAT/0015/14 the EAT observed that: "Sometimes it may be obvious that, taking the facts at their highest in favour of the claimant, as they would have to be if no evidence were to be heard, the claim simply could not succeed on the legal basis on which it has been put forward." In Community Law Clinics Solicitors Ltd & Ors-vMethuen UKEAT/0024/11, it was stated that "the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail." All of the available material had to be considered on such an application (see Balls above).[8]Where a tribunal considered that any specific allegation, argument or claim had little reasonable prospect of success it may choose, in the alternative, to make a deposit order (rule 40). If there was a serious conflict on the facts disclosed on the face of the claim and response forms, it may have been difficult to judge what the prospects of success truly were (Sharma-v-New College Nottingham [2011] UKEAT/0287/11/LA). Nevertheless, a judge can take into account the likely credibility of the facts asserted, the likelihood that they might have been established at a hearing (Spring-v-First Capital East Ltd [2011] UKEAT/0567/11/LA) and/or their inherent implausibility (Ahir-v-British Airways [2017] EWCA Civ 1392). Discussion and conclusions[9]The Claimant was employed by the Respondent between 16 December 2023 and 12 May 2025 as an Assistant Store Manager at its retail premises in Swindon, Wiltshire.[10]The Claimant’s Claim Form contained very little detail of the complaints that she was attempting to advance. Beyond alleging that she had been bullied, harassed, micromanaged and discriminated against, no details of any of those actions were set out. The only specific allegation that was made was that her annual leave request for her wedding was rejected.[11]Further detail was obtained from Mrs Dias during the hearing. In short, she set out the claim as follows; - On 2 March 2025, the Claimant had applied for annual leave in December 2025 and into January 2026. She applied for 20 days (four weeks) in order to travel to India for her wedding. She applied in writing, an application which went to Head Office; - She alleged that her manager, Ms Lymath, did not like the fact that the application had been made in writing. Previously, such applications had been dealt with informally and orally at a local level; - Nevertheless, the following day, leave was granted for 15 days (three weeks) which the Claimant was happy with; - The Claimant alleged that because Ms Lymath had been unhappy about the application having been in writing, she subjected her to discriminatory and detrimental treatment; she reviewed the Claimant’s conduct from CCTV footage on days that she had not been at work herself, she allocated mundane tasks (cleaning shelves) and then criticised her work and questioned whether she had actually undertaken those tasks; - The Claimant alleged that, on 25 April, Ms Lymath held an impromptu meeting at which her leave was reduced to 2 weeks; - The Claimant intended to do something about that; to appeal the decision or go to Head Office about the reversal, but she had no chance to do so because she was dismissed for alleged poor performance just a few days later, on the 28th; - She considered that the dismissal had been because she had put in her annual leave request in writing, not because of her alleged poor performance, because she had received praise for her work and had been promoted.[12]The Respondent submitted a small bundle of documents for the hearing, pages to which have been referred to in square brackets below.[13]Mr Philp’s submissions were, in essence, as follows; - The discrimination claims were doomed to failure since the Claimant was not married at the time that the events occurred; - That the unfair dismissal claim was also bound to fail because the Claimant did not have two years’ service when she was dismissed. Any suggestion that she had been dismissed for asserting a statutory right under s. 104 (4)(d) of the Employment Rights Act, which the Judge proposed as an interpretation of the claim, was also not capable of succeeding because there was no suggestion that any such right had been asserted.[14]In relation to the discrimination complaints, Mr Philp was correct; sections 8 and 13 (4) made it clear that the Claimant had to have been married or in a civil partnership at the time of the alleged discrimination in order to have been protected by the Equality Act. Mrs Dias’s assertions that she had been discriminated against because of her intention to have been married did not work under the Act. There was no reasonable prospect of such a claim succeeding and it was dismissed.[15]The complaint of unfair dismissal was a little more nuanced. On its face, of course, without two years’ service, the Claimant had to identify some statutory exception which enabled the claim to proceed. She had not done so but, as a litigant in person, an objective analysis of the facts had to be undertaken against the statutory background in order to understand whether such a claim was reasonably disclosed.[16]The Claimant alleged that her dismissal had been connected to her leave request. The Claimant’s contract entitled her to 5.6 weeks of holiday (28 days) within clause 14 [39-40]. The Company Handbook, which was expressly incorporated (clause 37 [45]), stated that an employee would not normally have been allowed to take more than 14 days leave at once.[17]Under s. 104 (4)(d) of the Employment Rights Act, a claimant could complain of automatically unfair dismissal if they had been dismissed because they had alleged that “the employer had infringed a …. relevant statutory right”. Sub-section (4)(d) covered rights conferred by the Working Time Regulations 1998. The right within regulation 15, for a worker to take leave “on such days as [she] may may elect” was qualified by subregulation (5) which stated that the right could have been “varied or excluded by a relevant agreement”. Where did all of that leave the Claimant?[18]It would have been a generous reading of her claim to have interpreted the complaint of unfair dismissal to have been one brought under s. 104 (4)(d). If such a reading was possible, the way in which the claim had been described did not indicate that the Claimant had asserted a statutory right at any particular time, either to her manager or to Head Office. A completed leave form was not an assertion of a statutory right, without more. Further, it appeared to have been the fact that the application for leave had been in writing which had been the thing which had allegedly irked Ms Lymath.[19]Yet further, her right to take leave was modified by regulation 15 (5) and the Contract and Handbook together entitled her to nothing more than 14 days in any consecutive period, which was what she had been given.[20]There was no reasonable prospect of such an argument working, even if it had been formulated and advanced. Without it, of course, the Claimant had no statutory basis upon which she could have claimed unfair dismissal and that claim to was dismissed as having no reasonable prospect of success under rule 38.