Otobor v Croydon College & Ors

An Employment Tribunal must construe an unrepresented claimant’s claim form as a whole and in its context. A discrimination claim may be sufficiently pleaded where the form identifies the protected characteristics and the factual complaints, even if each factual allegation does not repeat an express allegation of discrimination.

Strike-out remains available where a claim has no reasonable prospect of success. It was proper on the evidence to strike out vague age-discrimination allegations. It was not proper to strike out race-discrimination allegations concerning a vacancy and references where a white comparator was identified and the respondent had given differing explanations. Those issues required a merits hearing.

The claimant, a former lecturer supplied to the first respondent, alleged race and age discrimination in the refusal to provide references and to consider him for a lecturing vacancy. At a pre-hearing review, Employment Judge Baron struck out the claims and refused permission to amend the claim form. The judgment and reasons were sent on 8 August 2012.

On appeal, the respondents conceded that the Employment Judge had erred in rejecting the references claim on the basis that the claimant was neither an employee nor a worker. The remaining issues were whether the ET1 already advanced discrimination claims concerning references, whether amendment should have been allowed, and whether the age and race claims had reasonable prospects of success.

1. The appeal was allowed in part. The claimant’s race-discrimination claims concerning the vacancy and the refusal of references could proceed. The strike-out of the age-discrimination claims was upheld.

2. The ET1 had to be read as a whole and in context. It expressly identified race and age discrimination, and its factual allegations concerning references formed part of that complaint. The Employment Judge therefore erred in treating the references allegations as a new claim requiring amendment.

3. In any event, the refusal of amendment was erroneous. The Employment Judge had proceeded on a factual error about time, since the last event alleged was in March 2012 and the claim was presented in May 2012. The balance of prejudice also favoured the claimant, particularly because all material factual allegations were already in the original claim.

4. A claim with no reasonable prospect of success may properly be struck out. The age allegations were no more than a vague assertion of a tendency to appoint younger people. They had no reasonable prospect of success.

5. The race claims required trial. In relation to the vacancy, the claimant identified a white comparator and was entitled to test the respondent’s explanation. In relation to references, the respondent had supplied differing explanations for its refusal. Neither claim could properly be characterised, on the available material, as having no reasonable prospect of success.

6. The respondents could renew an application for a deposit order. Any such application was to be heard by a different Employment Judge.

• Employment Appeal Tribunal: Allowed the appeal in part; restored the race-discrimination claims concerning references and the vacancy, upheld strike-out of the age claims, and directed that any renewed deposit-order application be heard by a different judge.
• Employment Tribunal, London South: At a pre-hearing review, Employment Judge Baron struck out the claims and refused an amendment. Reasons were sent on 8 August 2012.