Sood v Christ The King School & Ors

Strike-out powers in discrimination proceedings must be exercised cautiously. Claims involving disputed facts should ordinarily be determined after the evidence has been heard, and strike-out is appropriate only in the plainest and most obvious case. A tribunal should assess the overall picture rather than remove allegations piecemeal, particularly where allegations may bear on a continuing act or discriminatory dismissal.

The test for a deposit order is lower: it is sufficient that a claim has little reasonable prospect of success. Case-management powers cannot be used to exclude allegations as an alternative to the statutory strike-out jurisdiction.

The claimant brought extensive claims against a school and individual respondents, including race discrimination, victimisation, whistleblowing detriment, unfair dismissal, religion or belief discrimination and disability discrimination.

Following a three-day pre-hearing review, the Employment Tribunal dismissed certain claims as out of time, struck out other allegations under ET Rule 18(7), and imposed a deposit order under ET Rule 20. The appeal challenged the striking-out of allegations concerning religion or belief, victimisation and detriment, and allegations said to add nothing to other complaints. The central issues were whether those matters could properly be determined without a full merits hearing and whether the deposit order could be extended.

1. Appeal allowed. Paragraphs 3, 5 and 6 of the Employment Judge’s judgment were set aside, except that allegations 55, 69, 74, 88, 165 and 172 remained struck out by agreement. The remaining allegations were to proceed to a merits hearing, where limitation would also be determined.
2. Under ET Rule 18(7)(b), discrimination and whistleblowing claims should not be struck out for having no reasonable prospect of success except in the plainest and most obvious case. Fact-sensitive disputes should normally be resolved after the witnesses have been heard. The allegations raised factual issues relevant to the alleged continuing act and to the discriminatory character of the dismissal.
3. The tribunal was wrong to strike out alternative victimisation claims merely because a direct-discrimination claim was also advanced. Whether the conduct resulted from prohibited discrimination or from a protected act was a matter for the fact-finding tribunal. The same applied to the disability-victimisation claims.
4. Under ET Rule 18(7)(c), unreasonable conduct may justify strike-out where there is deliberate and persistent disregard of procedural requirements, where a fair trial is no longer possible, or where conduct is intimidatory. Allegations could not be removed merely because they added nothing to other factual allegations.
5. The power to order a deposit under ET Rule 20 involves a lower threshold: the tribunal need only consider that the claim or part of it has little reasonable prospect of success. Case-management powers under ET Rule 10(2) could not circumvent the safeguards governing strike-out under Rule 18(7).
6. Using section 35 of the Employment Tribunals Act 1996, the Tribunal directed that the specified disability-victimisation allegations be added to the existing deposit order, without requiring any additional payment. The variation would take effect after 21 days, during which the claimant could withdraw those allegations.

• Employment Appeal Tribunal: allowed the appeal against the relevant parts of the Nottingham Employment Tribunal’s judgment, promulgated on 8 June 2010. The specified allegations were restored for determination at the merits hearing, subject to limitation.