Ms H McCourt v Peninsula Business Services Ltd and Mr Doran: 8002691/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002691/2025Venue Glasgow by CVPHearing 7 May 2026
Between
Ms H McCourtClaimantPeninsula Business Services Ltd and Mr DoranRespondent
Before
Employment Judge NeilsonDate 20 May 2026
JUDGMENT
The judgment of the Employment Tribunal is that:-(1) the respondent’s application to strike out the claimant’s case against the second respondent is refused; and(2) the respondent’s application for a deposit order is refused.
REASONS
[1]The claimant lodged a claim in the Employment Tribunal on 6 November 2025 claiming disability discrimination against the first and second respondent (“together the respondents”). The respondents made a written application on 10 March 2026 to strike out the claim by the claimant against the second respondent which failing an application for a deposit order.[2]The case was set down for an open preliminary hearing by CVP on 7 May 2026 to determine that respondent’s application of 10 March 2026.[3]At the hearing the claimant was represented by Mr McKinlay, Solicitor and the respondent was represented by Mr MacDougall, Counsel.[4]In broad outline the claim by the claimant is that she is employed by the first respondent as an employment law consultant at their Glasgow office. The second respondent is the head of the first respondent’s operations in Scotland. The claimant alleges a disability of Fibromyalgia. The claimant asserts that on 3 June 2025 there was an evacuation of the respondent’s premises in Glasgow as part of a fire evacuation drill. The claimant could not use the stairs as a consequence of her disability. There was an attempt to evacuate the claimant by means of an evacuation chair. The claimant alleges disability discrimination by the first and second respondent arising out of her treatment in respect of that evacuation and her treatment thereafter. The claimant also alleges a failure by the first respondent to make reasonable adjustments in respect of the provision of a desk.
Issues
[5]At the commencement of the hearing Mr McKinlay confirmed that the only claim being pursued by the claimant against the second respondent was under Section 15 of the Equality Act 2010 (“the EA”) in relation to the evacuation process.[6]Mr MacDougall confirmed that the basis upon which the application for strike out was made was “no reasonable prospect of success” under Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 (“the Rules”)[7]Mr MacDougall also confirmed that if I was not willing to strike out the claim against the second respondent then the respondents sought a deposit order under rule 40 of the Rules.
The Law
[8]Rule 38 of the Rules provides as follows: “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 is scandalous or vexatious or has no reasonable prospect of success;”[9]The EAT held that the striking out process requires a two-stage test in HM Prison Service v. Dolby [2003] IRLR 694, and in Hassan v. Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the Tribunal to decide, as a matter of discretion, whether to strike out the claim.[10]As a general principle, discrimination cases should not be struck out, except in the very clearest circumstances - Anyanwu v. Southbank Students’ Union [2001] IRLR 305.[11]Rule 40 of the Rules provides as follows:- “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 £1000 as a condition of continuing to advance that allegation or argument (“a deposit order”)[12]The EAT has considered the issue of deposit orders in Wright v. Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14, Hemdan v. Ishmail [2017] ICR 486 and Tree v. South East Coastal Services Ambulance NHS Trust 35 UKEAT/0043/17. In Tree, the EAT summarised the law at paragraphs 19-23. Discussion & Decision Submissions[13]It was not in dispute that the case against the second respondent was based upon sections 110 and 15 of the EA.[14]Section 110 of the EA provides as follows:- “110(1) A person (A) contravenes this section if - (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or(2) is treated as having been done by A’s employer or principal (as the case may be), and (c) The doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).”[15]Section 15 of the EA provides as follows:- “15(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”[16]Mr MacDougall accepted that the second respondent was an employee of the first respondent. He also accepted that there would be vicarious liability in this case in respect of the acts and omissions of the second respondent. Accordingly, the requirements of Section 110 (1) (a) and (b) were satisfied. In the submission of Mr MacDougall the only issue here was whether Section 110(1)(c) was satisfied in that the “doing of that thing by A” amounts to a contravention of Section 15 by the first respondent.[17]Mr McKinlay accepted that the “something arising” under Section 15 EA was the inability of the claimant to use the stairs to evacuate from the building. This arose from her disability.[18]In the submission of Mr MacDougall it was accordingly necessary to consider whether the acts or omissions of the second respondent as set out at paragraphs 11 to 37 of the pleadings in the ET1 amount to unfavourable treatment.[19]In his analysis of the claimant's pleadings at paragraphs 11 through to 37 of the ET1 Mr MacDougall identified areas where it could be said that the second respondent had in one way or another committed an act or omission in respect of the claimant that would constitute unfavourable treatment for the purposes of section 15 EA. He made reference to what he called the “strapping issue” and the “operation issue”. Mr MacDougall highlighted that at paragraph 22 there is reference to the claimant being strapped into the evacuation chair with the implication being that the second respondent was involved in that process (although he is not expressly mentioned). This is the “strapping issue”. Thereafter from paragraph 23 through to 33 there are pleadings related to how the second respondent and a Ms Campbell (the claimants line manager) operated the chair and manoeuvred it down the stairs – the “operation issue”.[20]Mr MacDougall then referred me to the Supreme Court case of Williams v The Trustees of Swansea University Pension & Assurance Scheme and another 2019 ICR 23 as authority for the proposition that just because something is not more advantageous does not mean that it is unfavourable for the purposes of Section 15 EA. This was in the context of an ill health retirement pension that was reduced to reflect part time working hours. The Court of Appeal and Supreme Court both found that the relevant treatment was the award of a pension and there was nothing intrinsically unfavourable about that. Mr MacDougall submitted that the position in the present case was that the relevant treatment was the provision of the evacuation chair and there was nothing intrinsically unfavourable about that. In Mr MacDougal’s submission the only unfavourable treatment can be that related to the manner in which the claimant is evacuated. In his submission the manner of the evacuation could not be seen as unfavourable treatment.[21]On the question of exercising discretion Mr MacDougall submitted that I should bear in mind two points. That in any event all the evidence will still be heard even if I strike out the claim against the second respondent and secondly that the claimant will still have a remedy against the first respondent.[22]Mr MacDougall confirmed that if I was not with him on strike out then he would still seek a deposit order.[23]For the claimant Mr McKinlay submitted that the claimant was entitled to pursue a claim against an individual. He referred me to Baldwin -v- Cleves School 2024 EAT 66 that a Tribunal has no discretion to find an employee not liable if the conditions of section 110 EA are met. He submitted that there are clear pleadings in paragraphs 11 to 37 of the ET1 that show unfavourable treatment. He submitted that in essence the pleadings make out a case that the second respondent did not know how to use the equipment, went ahead and used it anyway with the result that the claimant was bumped, got her foot caught and was left feeling traumatised. He submitted this was clearly unfavourable treatment. This was properly a matter to be dealt with at the final hearing. Strike out was a draconian power and should not be used here.[24]On the issue of discretion Mr McKinlay submitted that I should take into account that the second respondent would likely be required to give evidence in any event, there would be no significant saving in time and expense and the claimant would be denied an opportunity to establish a case against the second respondent.[25]On deposit order he submitted that the high bar required for that had not been met.
Conclusion
[26]In considering the strike out application I take into account the requirement that strike out should only be used in discrimination cases in the plainest and most obvious of cases (Anyanwu). I am not satisfied that the allegations against the second respondent are in the category of having no reasonable prospect of success. I accept that the pleadings against the second respondent are somewhat lacking in clarity. However, I do think it is clear (as Mr MacDougall himself set out) that there are allegations that the second respondent failed to correctly strap in the claimant and failed to safely maneuver the claimant down the stairs in the evacuation chair. The extent to which these occurred and are established as being the fault of the second respondent will require to be determined by evidence. I accept that the primary thrust of the claimant’s case is not about the use of the evacuation chair itself – rather it is about the manner in which it was used by the second respondent. I am not satisfied that this is a case that is clearly comparable to Williams v The Trustees of Swansea University Pension & Assurance Scheme and another 2019 ICR 23. It seems to me that it is arguable that the unfavourable treatment may extend to the manner in which the evacuation chair is used. I do consider that it would be better to hear all the evidence in the first instance before any final determination on that point can be made. I also bear in mind that in Williams the Supreme Court highlighted that it was a low threshold to establish unfavourable treatment.[27]It is not necessary for me to go on an exercise my discretion as I am not satisfied that the first limb of the test is made out.[28]I accordingly dismiss the application for strike out.[29]In relation to the alternative request for a deposit order I am also not satisfied that there is little reasonable prospect of success. I accept that the test here is less rigorous that that under strike out but ultimately the issue of the liability of the second respondent will still require to be determined by evidence. The issue remains to what extent the manner in which the second respondent operated the evacuation chair can be seen to be unfavourable treatment. It will be important to hear the evidence to determine that. I do not consider that it can be said at this stage, absent the evidence, that the claim by the claimant against the second respondent has little reasonable prospect of success.[30]I accordingly dismiss the application for a deposit order.