Dossen v Headcount Resources Ltd & Ors

An Employment Tribunal should strike out a discrimination allegation for having no reasonable prospect of success only in an exceptional case where the central facts are disputed. Discrimination claims are fact-sensitive and ordinarily require determination after evidence has been heard. Contemporaneous documents may justify strike-out only where they conclusively dispose of the material allegation.

Where pleaded allegations form a disputed and interrelated course of discriminatory conduct, it will generally serve no useful purpose to strike out selected core allegations in advance. Their truth or falsity may materially assist the assessment of the remaining allegations and should ordinarily be determined together.

The claimant, a white British human-resources manager married to a black African man, brought claims including sex and associative race discrimination following the termination of her employment. Her particulars alleged a course of racist and sexist conduct by Mr Colman.

At a pre-hearing review, the Reading Employment Tribunal struck out two of eight discrimination allegations as having no reasonable prospect of success. It relied on telephone records concerning calls and an email concerning clothing given to the claimant's children. The claimant appealed only that partial strike-out.

The central issue was whether those two allegations could properly be removed before a full evidential hearing.

1. Appeal allowed. The partial strike-out of allegations 13(b) and 13(h) was set aside. They were to proceed to the full hearing with the other discrimination allegations. In all other respects, the Employment Judge's order remained in force.

2. The Tribunal applied the approach in Anyanwu v South Bank Students Union [2001] ICR 391 and Eszias v North Glamorgan NHS Trust [2007] IRLR 603. Discrimination claims are ordinarily fact-sensitive. Where there is a crucial core of disputed fact, strike-out for no reasonable prospect of success requires an exceptional case. Documents must be sufficiently conclusive to make a hearing unnecessary.

3. The telephone records supported the respondent's case but did not dispose of the whole allegation. The allegation also concerned the nature, timing and content of calls. Some calls appeared to have been made at unusual times or in quick succession. There was no statement confirming that the disclosed records represented all calls made to the claimant.

4. The email concerning the clothes was strong evidence for the respondent, but it was not exceptional and conclusive evidence of the kind capable of resolving the allegation without hearing evidence. The Employment Judge also appeared to have treated that allegation as another allegation about telephone records.

5. Both allegations formed part of the central and disputed course of conduct. Their determination could bear on the credibility and assessment of the other allegations. Piecemeal strike-out therefore disadvantaged both parties and served little, if any, useful purpose.

• Employment Appeal Tribunal: appeal allowed in part on the only remaining issue; the two discrimination allegations were restored for the full hearing.
• Employment Tribunal (Reading): by an order dated 15 March 2012, struck out two pleaded discrimination allegations as having no reasonable prospect of success.