Mr R J S Franchi v Department for Work and Pensions: 8001793/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001793/2024

Between

Mr R J S FranchiClaimant

Department for Work and PensionsRespondent

Before

Employment Judge P O’Donnell

Ms E Campbell (instructed by Solicitor) for respondent

Date 8 July 2025

JUDGMENT

[1]The claim of direct age discrimination relying on comparators on SEO Grades having been withdrawn at the hearing is hereby dismissed under Rule 51.

[2]The claim of direct age discrimination relying on comparators on “Employee Deal” terms is struck-out under Rule 38 of the Tribunal Rules of Procedure 2024 as having no reasonable prospects of success.

REASONS

[1]The claimant has brought complaints of direct age discrimination under the Equality Act 2010. There were originally three claims but one of these was withdrawn earlier in the case management process.

[2]The two remaining claims, as identified by Employment Judge MacLeod in his Note of the preliminary hearing held on 3 February 2025 and the claimant’s subsequent specification, are as follows:-a. A claim of direct age discrimination relating to the 5.5% pay rise awarded to staff on “Employee Deal” terms and conditions as compared to the 4.5% pay rise awarded to the claimant. The claim relies on comparators in the age group 20-40 whereas he is in the age group 40-65 (“Claim 1”).

b. A claim of direct age discrimination relating to the 9.45% pay rise awarded to staff on SEO Grades as compared to the 4.5% pay rise awarded to the claimant. The claim relies on comparators in the age group 40-65 which is the same age group as him (“Claim 2”).

[3]At the present hearing, the claimant withdrew Claim 2 and the Tribunal dismissed that claim under Rule 51.

[4]The respondent applies for Claim 1 to be struck out as having no reasonable prospects of success, failing which for a deposit order to be made on the basis that the claim has little prospect of success. The Tribunal heard submissions from both parties in respect of this application at the present hearing.

Relevant Law

[5]The Tribunal has power to strike-out the whole or part of claim under Rule 38: “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) …

[6]The process for striking-out under Rule 38 involves a two stage test (HM Prison Service v Dolby

[2003] IRLR 694

, EAT; Hasan v Tesco Stores Ltd

UKEAT/0098/16

). First, the Tribunal must determine whether one of the specified grounds for striking out has been established; second, if one of the grounds is made out, the tribunal must decide as a matter of discretion whether to strike out or whether some other, less draconian, sanction should be applied.

[7]A Tribunal should be slow to strike-out a claim where one the parties is a litigant in person (Mbuisa v Cygnet Healthcare Ltd EAT 0119/18) given the draconian nature of the power.

[8]Similarly, in Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL, the House of Lords was clear that great caution must be exercised in striking-out discrimination claims given that they are generally fact-sensitive and require full examination of the evidence for a Tribunal to make a proper determination.

[9]In considering whether to strike-out, the Tribunal must take the Claimant’s case at its highest and assume he will make out the facts he offers to prove unless those facts are conclusively disproved or fundamentally inconsistent with contemporaneous documents (Mechkarov v Citibank NA

2016 ICR 1121

, EAT).

[10]The Tribunal has the power to make a deposit order under Rule 40:(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).

(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

(3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.

(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.

(5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of nonpresentation or rejection of response, or case not contested).

(6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).

(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b) the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded.

(8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.

[11]In Hemdan v Ishmail

[2017] IRLR 228

, it was confirmed that the purpose of the rule was to identify claims with little prospect of success at an early stage and discourage those but was not intended to act as a barrier to access to justice or to “strike-out by the back door”.

[12]In determining an application for a deposit order, the Tribunal is entitled to have regard to the prospects of any party making out any factual assertion on which the claim is based as well as purely legal issues (Van Rensburg v Royal Borough of Kingston-upon-Thames

UKEAT/0095/07

). However, the Tribunal “must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response” (Van Rensburg para 27) although this should not involve a trial of the facts as this would defeat the purpose of the Rule (Hemdan).

[13]The starting point for pay law in the UK is the principle that the amount which an employee is entitled to be paid is determined by what is agreed in their contract of employment and employers are, generally speaking, free to pay their employees whatever they see fit. It is only in certain, limited circumstances that the law will interfere with this right. For example, the minimum wage legislation makes it unlawful to pay employees below a certain hourly rate and the Equality Act 2010 makes it unlawful to pay people less for reasons relating to their sex, race, disability, sexual orientation, age and religion/belief. There is no law in the UK that requires employers to pay a fair wage or equal pay in a general sense.

[14]The definition of direct discrimination in the 2010 Act is as follows: 13 Direct discrimination 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.

[15]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (s23 of the Equality Act 2010).

[16]However, a difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; “something more” is required (Madarassy v Nomura International

[2007] IRLR 246

). The Tribunal needs evidence from which it could draw an inference that the relevant protected charactersitic was the reason for the difference in treatment.

[17]It is important to remember that unreasonable or unfair behaviour is not enough to allow for an inference of direct discrimination (Bahl v The Law Society

[2004] IRLR 799

[18]It is a well-established principle that Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong

[2005] ICR 931

(as approved by the Supreme Court in Hewage v Grampian Health Board

[2012] IRLR 870

[19]The Tribunal bears in mind that it should be slow to strike-out a discrimination claim brought by a party litigant. However, the present case is not one where there is any real dispute of fact between the parties nor it is one where the claimant is asking the Tribunal to draw an adverse inference from ostensibly “innocent” circumstances.

[20]The following essential facts are not in dispute:a. The claimant is employed on what are described as “legacy terms” which existed prior to 2016.

b. The comparators are employed on what are described as “Employee Deal” terms which were introduced in 2016.

c. All employees on legacy terms (including the claimant) have the option to moved to Employee Deal terms. The claimant has chosen not to exercise this option.

d. Different levels of pay rise were awarded to those on legacy terms from those on Employee Deal terms.

[21]The Tribunal considers that it is clear from these facts that, on the claimant’s own case taken at its highest, the reason for any difference in the pay rise awarded to the claimant and that awarded to his comparators was not the protected characteristic of age but, rather, the fact that they are employed on different terms and conditions.

[22]The claimant does not seek to argue that the staff are placed on different terms and conditions based on their age. All staff who commenced employment after Juen 2016, regardless of their age, are employed on Employee Deal terms.

[23]Further, all staff on legacy terms have the opportunity to move Employee Deal terms. The claimant accepts that he could do so but has chosen not to move to these terms and condition. He is entitled to this choice but does have to bear the consequences of it.

[24]The claimant does not ask the Tribunal to draw any inference of age discrimination from these facts. He simply points to younger employees who were awarded a higher pay rise but this, on its own, is not sufficient to establish direct age discrimination. It is clear that the reason for this difference in treatment is the difference in terms and conditions and the claimant does not point to anything from which he says provides the “something more” required for the Tribunal to draw an inference that age is an underlying or operative cause of the difference in pay awards.

[25]In these circumstances, the Tribunal considers that Claim 1 has no reasonable prospects of success because, even taking the claimant’s case at its highest, the reason why he was awarded a lower pay rise than his comparators has nothing to do with his age. It is because different pay awards were made to groups of employees on different terms and conditions regardless of age and the claimant has chosen to remain in the group with the lower pay award.

[26]Having concluded that the first element of the test under Rule 38 is met, the Tribunal has to go on to consider whether to exercise its discretion to strikeout the claim.

[27]This is not a case where there is anything else which could be done to remedy the fundamental problem with the case. It is not a matter of inadequate specification that could be fixed by more detail but rather a case where there are no reasonable prospects of success on the basis of the undisputed facts.

[28]The Tribunal does not consider that it would be in keeping with Overriding Objective to put both parties to the time and expense involved in determining the case at a final hearing and that it would be disproportionate to do so where the case has no reasonable prospects of success.

[29]The Tribunal, therefore, exercises its power under Rule 38 to strike-out the remaining claim of direct age discrimination. 08 July 2025