Patel v Lloyds Pharmacy Ltd

An Employment Tribunal may strike out a discrimination claim with no reasonable prospect of success, even though discrimination claims are fact-sensitive and strike-out is exceptional. The tribunal should take the claimant’s case at its reasonable highest and ask whether it could succeed.

A claim should not proceed merely because cross-examination might unexpectedly reveal evidence supporting it. Where the material provides no reasonable basis to infer that the relevant decision-makers knew, or could be imputed with knowledge, of the claimant’s disability, a direct disability discrimination claim may properly be struck out.

The claimant, who had bipolar disorder, applied for employment with the respondent. His application form disclosed his condition on an equal-opportunities monitoring page, but that page was routinely removed before the form was supplied to the interviewers. The interviewers did not recommend him for employment after a scored interview.

An Employment Judge struck out his direct disability discrimination claim under rule 18(7)(b) of the Employment Tribunal Procedure Rules, while extending time for the claim. The claimant appealed, relying in part on communications involving a manager who had known of his disability in earlier dealings. The central issue was whether the claim nevertheless had a reasonable prospect of success.

1. Appeal dismissed. Taking the claimant’s case at its reasonable highest, there was no reasonable prospect of proving that the interviewers knew, or could be imputed with knowledge, of his bipolar disorder.

2. The material could support an inference that a manager who had previously dealt with the claimant had communicated dissatisfaction with his past locum work to the interviewers. It could not reasonably support an inference that the interviewers knew of the disability, or that the manager’s dissatisfaction arose from it. The contemporaneous emails did not fill that evidential gap.

3. Discrimination claims are fact-sensitive and strike-out is a draconian remedy. The high threshold reflected in Anyanwu and Ezsias does not prevent a tribunal striking out a hopeless claim simply because some factual matters remain unresolved. The correct course is to assess the claimant’s case at its reasonable highest and determine whether it could succeed.

4. A claim with no reasonable prospect of success should not proceed on the speculative possibility that cross-examination may reveal a discriminatory admission. No principle requires every disability discrimination claim involving oral evidence to go to a full hearing on that basis.

5. This was a clear case in which strike-out was proper. The Employment Judge’s decision was upheld.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal upheld Judge Kearsley’s decision of 18 November 2011 to strike out the direct disability discrimination claim.
• Employment Tribunal: time for the claim was extended, but the direct disability discrimination claim was struck out under rule 18(7)(b) of the Employment Tribunal Procedure Rules.