Community Law Clinic Solicitors Ltd.v Methuen

Permission to appeal in an interlocutory discrimination matter should be granted where the proposed appeal has a real prospect of success, or raises a point of principle and there is a compelling reason for it to proceed. Tribunals must approach strike-out applications with caution because discrimination claims are often fact-sensitive. That caution does not require a hopeless claim to proceed: where the claim is bound to fail, the need for care cannot displace the proper exercise of the interlocutory jurisdiction. A claimant who cannot bring an unfair-dismissal claim cannot establish a prima facie discrimination case merely by showing that a replacement employee has different protected characteristics.

The appellant, Mr Methuen, had been dismissed by the respondent solicitors’ firm before acquiring the qualifying service needed to bring an unfair-dismissal claim. He therefore brought claims alleging race, gender and age discrimination. The Employment Tribunal refused to strike out the discrimination claims.

On an interlocutory appeal, Bean J struck out the race and gender claims but allowed the age claim to proceed, considering it just on the proper side of the line because factual findings about the appellant’s performance and work in progress might be material. Mr Methuen challenged that distinction in the Court of Appeal. The central issue at this stage was whether the proposed appeal had a reasonable prospect of success, or whether there was a point of principle and compelling reason justifying permission.

1. Permission granted. The Court of Appeal granted permission to appeal and made no order as to costs.
2. Lord Justice Moses considered that the proposed appeal had, at the lowest, a real prospect of success. The Employment Appeal Tribunal had treated the race and gender claims as bound to fail because the appellant relied only on the employment of a younger woman of different ethnic origin, with lower qualifications and salary, who was engaged principally in the Immigration Department but might do some Family Department work. The Court of Appeal could find no rational basis for distinguishing the age claim from the race and gender claims.
3. The logically prior question was whether there was any material from which an inference of discrimination could be drawn. It was insufficient merely to rely on the fact that a replacement employee did not share the claimant’s protected characteristics. The employer’s explanation concerning inadequate work generation, referrals and work in progress could not by itself make the discrimination claims sufficiently arguable where the necessary discriminatory inference was absent.
4. The court recognised the caution required before discrimination claims are prevented from reaching a tribunal because such claims are frequently fact-sensitive and require sensitivity and care. Applying the approach referred to in Anyanwu [2001] ICR 391, that caution cannot preserve a claim which is bound to fail. The court also relied on the importance of exercising the interlocutory jurisdiction, identified in Madarassy v Nomura International PLC Plc [2007] ICR 867, to prevent tribunals being burdened by hopeless discrimination claims.
5. Although the appellant’s financial difficulty was accepted as serious, it was not a compelling reason to order the successful party to bear the appeal costs.

• Court of Appeal (Civil Division): Permission to appeal granted from the Employment Appeal Tribunal’s interlocutory decision. The court considered that the race, gender and age claims could not rationally be treated differently at the permission stage.
• Employment Appeal Tribunal: Bean J struck out the race and gender discrimination claims but allowed the age discrimination claim to proceed.
• Employment Tribunal: Employment Judge Hodgson refused to strike out the discrimination claims.