C v M Ltd

A tribunal may strike out a discrimination claim where the undisputed facts show that it has no reasonable prospect of success. Although strike-out is a draconic measure, it is justified where the pleaded allegation is implausible and cannot establish the asserted breach.

Absolute immunity is a complete answer to a victimisation claim founded on conduct in judicial proceedings, including related bankruptcy proceedings. A new jurisdictional point may exceptionally be raised on appeal where it is dispositive, requires no further evidence and falls within the applicable principles. A party seeking an adjournment on health grounds must provide evidence sufficient to show inability to participate.

The claimant appealed from Employment Judge Taylor’s pre-hearing review decision striking out her victimisation claim under the Sex Discrimination Act 1975 and making a costs order against her.

Her claim concerned conduct in earlier County Court proceedings between the parties and subsequent High Court bankruptcy proceedings. She alleged, among other matters, apparent bias by the Employment Judge and a breach connected with rule 49 of the Employment Tribunal Rules of Procedure.

At the appeal hearing the claimant neither attended nor provided medical evidence supporting her assertion that ill health prevented participation. The respondent sought permission to advance a new point: that absolute immunity from suit barred the claim. The appeal also challenged the strike-out and the costs order.

1. Appeal dismissed. The Employment Appeal Tribunal was entitled to determine the appeal in the claimant’s absence. She had supplied no medical evidence showing that she was unfit to participate. Her repeated correspondence also undermined her asserted inability to deal with the proceedings. Fairness to both parties required the matter to proceed.
2. The respondent was permitted to raise the new immunity point. Applying the principles summarised in Secretary of State for Health v Rance, [2007] IRLR 665, it was a jurisdictional and dispositive point, raised sufficiently before the hearing, which required no further evidence.
3. Absolute immunity was a complete answer to the victimisation claim. The pleaded complaint concerned acts in County Court litigation and ensuing High Court bankruptcy proceedings. Such conduct fell within the relevant category of immunity identified in Lincoln v Daniels, [1962] 1 QB 237, and immunity expressly extended to victimisation claims under Parmar v East Leicester Medical Practice, [2011] IRLR 641.
4. Independently, the Employment Judge correctly struck out the claim under rule 18(7)(b) of the Employment Tribunal Rules of Procedure. Strike-out is draconic because it disposes of a claim without evidence, but the primary facts were undisputed and the claim had no reasonable prospect of success. Rule 49 imposed duties on the Tribunal, Employment Judge or Secretary concerning public records in proceedings involving sexual-offence allegations. It could not found a complaint that the respondent had breached the rule in County Court or High Court proceedings.
5. The costs order below was properly made. The claim was hopeless or had been pursued unreasonably, and the claimant lost the opportunity to address her means through her conduct. The Tribunal also awarded the respondent limited appeal costs of £2,785 inclusive of VAT, representing the costs of the hearing day.

• Employment Appeal Tribunal: Appeal dismissed; the strike-out and the costs order of Employment Judge Taylor were upheld.
• Employment Tribunal: At a pre-hearing review, Employment Judge Taylor struck out the claimant’s victimisation claim and made a costs order. Written reasons were dated 17 May 2011 for the pre-hearing review judgment dated 20 August 2010.