QDOS Consulting Ltd & Ors v Swanson

A claim may be struck out for having no reasonable prospect of success only in the clearest case. The applicant must show no reasonable prospect, not merely weakness or improbability. Where determination requires substantial documentary examination, resolution of material factual disputes, or assessment of credibility, the claim should proceed to a full hearing.

Particular caution is required for discrimination claims, which are commonly fact-sensitive. Imperfect pleading will not justify strike-out where the allegations, alleged comparators and disputed treatment are sufficiently identifiable. A deposit order under rule 20 likewise requires the statutory lower threshold of little reasonable prospect; it is not justified by speculative adverse credibility findings drawn from other litigation.

The employers appealed against an Employment Tribunal decision refusing to strike out the employee’s claims, or to require a deposit. The claims included discrimination on grounds of race, sex, age and disability, victimisation, detriment for protected disclosure, and unfair dismissal.

The employers contended that the pleadings remained inadequately particularised and that the employee’s previous employment litigation showed a repetitive and vexatious pattern. The Employment Judge held that the pleadings identified claims, incidents and comparators sufficiently to require factual findings, and that the earlier proceedings did not establish that the present claims were vexatious or hopeless.

The central issue was whether the Employment Judge erred in refusing strike-out under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, or a deposit order under rule 20.

1. Appeal dismissed. The Employment Judge was entitled to refuse both strike-out and a deposit order. The claims raised real factual disputes which could not properly be resolved at a preliminary hearing.

2. Under rule 18(7)(b), the question is whether the claim has no reasonable prospect of success. It is a high threshold. It is not met because a claim appears weak, unlikely to succeed, poorly expressed, or because the respondent’s account may ultimately be preferred. A strike-out application should normally be confined to an obvious and plain case with no material factual dispute.

3. Discrimination claims require particular caution because their resolution is commonly fact-sensitive. Applications requiring extensive documents, disputed evidence or credibility assessment must be determined at a full hearing. Such applications should rarely involve oral evidence and should normally be measured in hours rather than days.

4. The employee’s allegations of disability discrimination, unfair dismissal and victimisation were sufficiently pleaded to proceed. Although the allegations of race, sex and age discrimination were imperfectly particularised, they identified factual allegations, comparators and the alleged nature of the discrimination. If unfair treatment, minority status and less favourable treatment by comparators were established, an inference of discrimination might arise absent a satisfactory explanation.

5. Previous litigation did not destroy the employee’s credibility or establish that this claim had no reasonable prospect of success. One earlier matter had been compromised, and the remaining material did not permit the Tribunal to determine the present fact-sensitive claims summarily.

6. The lower threshold for a deposit under rule 20 was also not met. The Employment Judge was not wrong to decline to infer little reasonable prospect from the earlier proceedings or without hearing the evidence.

• Employment Appeal Tribunal: The employers’ appeal was dismissed. The refusal of strike-out and of a deposit order was upheld.
• Employment Tribunal, Birmingham: At a pre-hearing review on 8 April 2011, Employment Judge Warren refused to strike out the claims under rule 18(7)(b) and refused a deposit order under rule 20. Reasons were reconstructed and promulgated in June 2011; a later review application was refused.