Applications for Strike Out – When is it appropriate to strike out a Discrimination Claim?

Rule 37 of the Employment Tribunal Rules 2013 gives the Tribunal the discretion to strike out all or part of a claim or response on 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;
(c) for non-compliance with any of these Rules or with an order of the Tribunal;
(d) that it has not been actively pursued; or
(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

Rule 37(2) makes clear that the Tribunal will not proceed with striking out all or part of the claim or response until the prejudiced party has been given the chance to put forward their representations against the strike out either in writing or at a hearing.

If the Tribunal decided that it was appropriate to strike out the whole of a claim, the proceedings would come to an end. If, however, the Tribunal struck out a response, the claim would still proceed, but it would be as if no response had ever been presented (Rule 37(3)).

In general, strike out is viewed as a draconian step and Tribunals will only order it when absolutely necessary and in unambiguous cases where there is no core of disputed facts. Further, Tribunals are much more mindful of applications for strike out on the ground of no reasonable prospect of success made against litigants in person than they are with applications made against parties who are represented.

There is also general guidance that there is public interest in discrimination cases being heard on the merits, therefore, a Tribunal is usually much less likely to strike out a claim of discrimination than it would be other types of claims. Further, when assessing strike out, the Tribunal should take the applicant’s case at its highest.

Zie -v- E’quipe Japan Ltd [2024] EAT 176

Background

In the recent case of Zie -v- E’quipe Japan Ltd [2024] EAT 176, the Claimant brought claims of indirect race discrimination and victimisation against her employer as a litigant in person.

Following a private Preliminary Hearing, the Claimant had been ordered by a certain date to say what alleged acts of race discrimination she complained of, and on what legal basis. The Respondent would then be given the opportunity to serve an Amended Response and confirm whether they intended to pursue any applications.

The Claimant did not send the ordered information until 6 days after the deadline. However, there was still sufficient time for the Respondent to file their Amended Response and provide a list of issues for the upcoming preliminary hearing. The Respondent confirmed it wanted to pursue a strike out application.

Judgment of the Employment Tribunal (“ET”)

At the Preliminary Hearing, in addition to the general guidance on assessing applications for strike out, the Tribunal reminded itself of the outcome in Morgan v Royal Mencap Society UKEAT/0272/15/LA whereby the Employment Appeal Tribunal (“EAT”) ruled that the ET had erred in law by striking out the case without first hearing evidence that could have resolved the factual disputes that were in the public interest.

The ET also considered Lord Nicholls’ guidance in Swiggs v Nagarajan [1999] UKHL 36: “direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually, the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

The ET also considered Lord Steyn in Anyanwu -v- South Bank Student Union and Ors [2001] UKHL 14 (“Anyanwu”): “discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society” and also Lord Hope: “the risk of injustice is minimised if the answers to these questions are deferred until all the facts are out.”

However, disregarding guidance raised by Lord Nicholls, Lord Steyn and Lord Hope, the ET proceeded with striking out the whole of the Claimant’s claim (without hearing all of the evidence) on the basis that they had no reasonable prospects of success.

Judgment of the Employment Appeal Tribunal (“EAT”)

The Claimant appealed the ET’s finding to the EAT on the basis that the ET had erred in law by not taking her case at the highest before finding that her claims of race discrimination had no reasonable prospect of success and also by making a determination before a full hearing because her claims had a core of disputed facts.

The EAT stated that, “The Employment Tribunal was required, in the circumstances of this case, to assume that the claimant will establish the facts from which it is asserted that the Employment Tribunal should infer discrimination. It was not required to assume that the inference of an anti-Chinese culture will be established.”

The ET had correctly assumed that the factual allegations would be made out, but wrongly concluded that there was no reasonable prospect of success based on those facts.

The EAT referred to Lord Hope’s guidance in Anyanwu, and also Lord Steyn’s guidance that “vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases.” In applying their guidance, the EAT concluded that the ET could not permissibly conclude that there were no reasonable prospects of the claimant establishing determination.

The EAT accordingly allowed the appeal, set aside the ET’s strike out order and remitted it back to the ET.

29 November 2024.