Odukoya v Wandle Housing Association Ltd

A claim should not ordinarily be struck out for having no reasonable prospects of success where there is a crucial core of disputed fact. Striking out is appropriate only in exceptional circumstances, such as where relevant documents conclusively disprove the central alleged facts. An Employment Tribunal must not conduct an impromptu trial by accepting one party’s untested evidence or by permitting one-sided cross-examination on the merits.

The principle applies with particular force to discrimination claims, which commonly require careful determination of fact-sensitive issues at a full hearing.

The claimant, a tenant and involved resident of the respondent housing association, applied for customer relations roles. He alleged race discrimination and victimisation in the handling of the recruitment process, including a later reopening of recruitment for a customer relations officer role.

An Employment Judge had earlier disposed of parts of the claim and permitted the remaining allegation concerning recruitment between September and December 2012 to proceed. After further particulars and a preliminary hearing, the Employment Judge struck out that balance of the claim as having no reasonable prospects of success. The claimant appealed on the basis that disputed factual issues required a full hearing.

1. Appeal allowed. The Employment Judge’s judgment of 23 June 2014 was set aside and the remaining proceedings were remitted to the Employment Tribunal.

2. The Judge erred in striking out the discrimination claim. There was a crucial core of disputed fact concerning the respondent’s explanations for the claimant’s treatment, the recruitment process, and comments and attitudes of respondent staff. Those matters required determination after hearing and testing the evidence.

3. The Employment Judge improperly accepted major parts of the respondent’s account without a trial. It was also unsatisfactory to dismiss the significance of staff comments on the basis that recruitment decisions were apparently advanced, since they could evidence an earlier attitude. Untested evidence about the ethnicity of those appointed could not support a strong conclusion without considering the relevant applicant proportions.

4. A mini-trial was objectionable in principle. It was particularly undesirable that the claimant had been thoroughly cross-examined while the respondent was allowed to rely on untested evidence, save insofar as evidence might properly have been needed for a distinct limitation issue.

5. The case was remitted for continuation, with a preliminary hearing envisaged for case management and definition of issues. It was to be heard by a different Employment Judge or Judges. The earlier unappealed judgment of 5 July 2013 remained unaffected.

• Employment Appeal Tribunal: Allowed the appeal in [2015] UKEAT 0093_15_1307, set aside the judgment dated 23 June 2014, and remitted the remaining proceedings.
• Employment Tribunal: On 23 June 2014, struck out the balance of the race discrimination and victimisation claim as having no reasonable prospects of success.
• Employment Tribunal: The earlier judgment dated 5 July 2013 was not appealed and was unaffected by the Employment Appeal Tribunal’s decision.