McKerrow v The Princess Alexandra Hospital NHS Trust

Strike-out is a draconian power and should be exercised sparingly in discrimination claims. A claim should not ordinarily be struck out where central facts remain disputed and those facts are material to the reason for the alleged discriminatory act. Where the employer’s asserted explanation appears credible but the claimant has a reasonable opportunity to investigate and test it at a full hearing, the claim may have reasonable prospects of success.

The claimant alleged that a hospital trust withdrew an offer of employment because it had learned of his existing race discrimination proceedings against another employer. The Employment Judge struck out the victimisation claim under rule 18(7)(b) of the Employment Tribunal Rules of Procedure 2004, finding that it had no reasonable prospects of success.

The claimant appealed. The central issue was whether disputed factual matters, including the content and significance of a telephone conversation shortly before the offer was withdrawn, required investigation at a full hearing.

1. The appeal was allowed. The Employment Judge’s decision was set aside insofar as it concerned victimisation, and the claim was remitted to an Employment Tribunal for determination.
2. Strike-out is a draconian power. In discrimination proceedings, it should be used only in the clearest cases. The authorities emphasise the importance of caution where the central facts are disputed, including Anyanwu v South Bank Student Union and Others [2001] IRLR 217 and Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330.
3. The critical question was why the job offer had been withdrawn. The claimant alleged that a reference-related telephone conversation had disclosed his existing tribunal claims and led to the withdrawal. The trust maintained that the replacement was no longer required.
4. Although the Employment Judge regarded the trust’s explanation as obviously credible, material factual issues remained concerning the conversation, the trust’s knowledge and the reason for withdrawal. The claimant should not be denied the opportunity to investigate those matters and cross-examine the relevant witnesses.
5. In those circumstances, it could not be said that the victimisation claim had no reasonable prospects of success.

• Employment Tribunal: Employment Judge Pritchard struck out the victimisation claim under rule 18(7)(b) of the Employment Tribunal Rules of Procedure 2004, holding that it had no reasonable prospects of success.
• Employment Appeal Tribunal: The appeal was allowed. The strike-out decision was set aside insofar as it related to victimisation, and the case was remitted to an Employment Tribunal for determination.