Sanak v Community Lives Consortium

An Employment Tribunal may strike out discrimination, whistleblowing and unfair-dismissal claims in a plain and obvious, fact-sensitive case. The need for caution in discrimination litigation does not prevent strike-out where the material facts are undisputed and the claimant's explanation is fanciful. Fairness must be assessed to both parties. It may require strike-out where a plainly unmeritorious claim would otherwise cause a respondent substantial expense and inconvenience.

The claimant, a support worker, was summarily dismissed after admitting that he had administered liquid to two service users without authority or a record of the administration or their deteriorating health. He brought ordinary unfair-dismissal, automatic unfair-dismissal under section 103A of the Employment Rights Act, and race-discrimination claims.

At a pre-hearing review, the Employment Tribunal at Port Talbot struck out the claims. It later dismissed a review application. After earlier appellate stages, the remaining issue before the Employment Appeal Tribunal was whether factual issues required determination at a substantive tribunal hearing rather than strike-out.

1. Appeal dismissed. The Employment Judge was entitled to strike out the claims, and the appeal failed on its merits.
2. The guidance in Ezsias, informed by observations in Anyanwu, requires appropriate caution before striking out discrimination claims. It does not bar strike-out in a plain and obvious case. The assessment remains fact-sensitive.
3. Here the essential facts leading to dismissal were undisputed. The claimant had admitted the unauthorised administration of liquid and the failure to record it. The Employment Judge was entitled to regard his explanation as fanciful and the case as plain.
4. The importance of discrimination law and whistleblowing protection does not make every complaint prima facie valid. The observations relied on from Anyanwu did not remove the need to be fair to the respondent. The respondent was a charity facing considerable expense and inconvenience in defending claims which were unlikely to yield recoverable costs.
5. Fairness to both parties therefore required strike-out on these facts.

• Employment Appeal Tribunal: the appeal was dismissed on its merits: [2014] UKEAT 0585_12_0204.
• Employment Appeal Tribunal: at a preliminary hearing on 8 May 2013, Langstaff P permitted part of the appeal to proceed to a full hearing, limited to whether factual issues required a substantive tribunal hearing.
• Employment Tribunal, Port Talbot: Employment Judge John Thomas struck out the claimant's claims in a pre-hearing review judgment promulgated on 19 January 2012, and dismissed a review application on 12 March 2012.