Community Law Clinic Solicitors Ltd & Ors v Methuen

A discrimination claim should be struck out only where it has no reasonable prospect of success. The fact-sensitive nature of discrimination litigation requires caution, but does not create an absolute bar to strike-out. A claimant does not establish an inference of discrimination merely by showing dismissal and replacement by a person with different protected characteristics. Some additional fact capable of supporting an inference is required. An age-discrimination claim may remain arguable where the employer’s stated performance reason is disputed and the replacement is markedly younger and less experienced.

Mr Methuen appealed against an Employment Judge’s refusal to strike out claims alleging age, race and sex discrimination. He had been dismissed after approximately eight months’ employment, allegedly because of poor billing performance and the financial position of the family department. He was replaced, at least in part, by a substantially younger Afro-Caribbean woman with less post-qualification experience.

The Employment Judge considered the claims weak but sufficiently arguable to proceed, and made a deposit order. The central issue was whether the claims had no reasonable prospect of success under the applicable Employment Tribunal rules.

1. Outcome. The appeal was allowed in part. The race and sex discrimination claims were struck out. The age-discrimination claim was remitted for a full hearing. The cross-appeal against the deposit order was dismissed on withdrawal.
2. Strike-out test. The power under rule 18(7)(b) is concerned with whether a claim has no reasonable prospect of succeeding at trial. Anyanwu v South Bank University and South Bank Student Union [2001] ICR 391 requires caution because discrimination claims are generally fact-sensitive, but does not impose an absolute bar on striking them out. The caution required varies with the nature of the issue, as illustrated by ABN Amro Management Services Ltd & Anor v Hogben [2009] UKEAT/0266/09/DM.
3. Race and sex claims. The claimant relied only on the fact that he had been replaced by someone of different sex and race. That bare difference, without an additional fact from which discrimination could be inferred, was insufficient. The claims therefore had no reasonable prospect of success.
4. Age claim. The age claim was close to the threshold but remained arguable. The employer relied on performance and departmental losses, while the claimant disputed the assessment and relied on work in progress and the department’s intended development. The marked age and experience difference between the claimant and replacement meant that the Employment Judge was entitled to leave the issue for determination after evidence.
5. Case management. The Tribunal indicated that the factual issues were narrow and should ordinarily be capable of resolution within two or, at most, three days.

• Employment Tribunal: Employment Judge Hodgson refused to strike out the age, race and sex discrimination claims and made a deposit order.
• Employment Appeal Tribunal: The race and sex claims were struck out; the age claim was remitted for a full hearing. The cross-appeal concerning the deposit order was dismissed on withdrawal.