Jiad v Byford & Ors

On a strike-out application in a discrimination claim, the question is whether the claim is bound to fail, not whether it is weak or tenuous. Discrimination claims are fact-sensitive and should be struck out only in the clearest cases. A comparator may be actual or hypothetical. In a victimisation claim arising from a single unusual incident, comparison may be made with a person who lacked the claimant’s history of proceedings. Detriment has a wide meaning and may include a material and substantial disadvantage. Physical or economic consequences are not necessarily required, although trivial disadvantage and transitory hurt feelings may be insufficient. Alleged psychological injury and medical treatment may raise an arguable case requiring a full hearing.

Dr Jiad, an Iraqi BBC employee, brought claims under the Race Relations Act 1976 against four individuals. He alleged that Janet Youngson, the BBC solicitor dealing with his earlier proceedings, had bullied and humiliated him, causing psychological and physical distress. He alleged that the other respondents had discriminated against or victimised him by failing to investigate his complaint.

The Employment Tribunal struck out the originating application under rule 13(2)(d) of the Rules of Procedure and ordered Dr Jiad to pay costs. The Employment Appeal Tribunal dismissed his appeal. The central issues were whether the claims were bound to fail for want of detriment or a comparator, and whether the claims against the individual respondents could properly proceed.

1. Appeal allowed in part. The claims against Mark Byford, Lesley Grainger and Greg Dyke were bound to fail and were rightly struck out. The strike-out and costs order in favour of Janet Youngson were set aside, and the victimisation claim against her was remitted to a differently constituted Employment Tribunal. The costs orders in favour of the other three respondents were maintained.
2. The applicable test under rule 13(2)(d) was whether the claim was bound to fail. That is the converse of there being an arguable case. A claim should not be struck out merely because it is weak or tenuous. The caution in Anyanwu v South Bank Students Union and South Bank University [2001] IRLR 305 was particularly relevant to discrimination claims.
3. The claims against the three respondents who were not involved in the incident could not amount to racial discrimination or victimisation. Their acts consisted of forwarding or receiving correspondence and writing routine responses. There was no arguable discriminatory or victimising act.
4. As to Janet Youngson, the allegations had to be assumed true. On that basis, the claim was not bound to fail for want of a comparator. The alleged aggressive treatment, together with the history of proceedings and Youngson’s responsibility for dealing with them, could support an inference of victimisation. A hypothetical comparator could be a litigant without that history. In an isolated and unusual incident, a formal comparator was not necessarily required at the strike-out stage.
5. Detriment has a wide meaning and means being put at a disadvantage. It must be material and substantial, so a trivial or de minimis disadvantage will not suffice. The court doubted the additional requirement, adopted in Lord Chancellor v Coker and Osamor [2001] IRLR 116 and applied in Shamoon v Chief Constable of the Royal Ulster Constabulary [2001] IRLR 520, that detriment must have a physical or economic consequence. Enduring psychological injury could be capable of constituting detriment, depending on the facts.
6. The alleged psychological injury, two consultations with a general practitioner and prescribed medication were sufficient to raise a possible case of detriment. Whether the alleged detriment was insignificant or de minimis required factual assessment. The claim was borderline, but it was not one of the clearest cases suitable for strike-out.

• Court of Appeal (Civil Division): appeal allowed in part. The strike-out was upheld for the claims against Byford, Grainger and Dyke. The victimisation claim against Youngson was restored and remitted.
• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s strike-out and costs order were upheld.
• Employment Tribunal, Central London: originating application struck out under rule 13(2)(d) of the Rules of Procedure, with costs ordered against Dr Jiad.