Dambagolla v Automobile Association Ltd (Disability Discrimination)

On an application to strike out for no reasonable prospect of success, the respondent bears the burden of satisfying the Employment Tribunal that the claim cannot succeed. A claimant may face an evidential need to identify arguable facts, but the Tribunal must not reverse the legal burden or determine disputed merits summarily.

Where limitation is raised, the Tribunal must distinguish a final determination that a claim is out of time from the separate question whether the respondent has shown that it has no reasonable prospect of establishing timeliness or an extension. Material allegations, including comparator evidence capable of supporting an inference of discrimination, must be addressed. Clear triable factual issues ordinarily require trial rather than a documentary mini-trial.

The claimant, a long-serving AA patrolman with a back disability, alleged that the respondent had failed to make adjustments, subjected him to performance management, and ultimately dismissed him as part of discriminatory conduct. He relied in particular on allegedly more favourable treatment of five able-bodied comparators who had committed similar acts.

Employment Judge James struck out the disability discrimination claims, including victimisation and harassment, while allowing the unfair dismissal claim to proceed. On reconsideration, the Judge held that most discrimination claims were out of time and that none had a reasonable prospect of success.

The claimant appealed. The central issue was whether the Tribunal had lawfully struck out claims which depended on contested facts, comparator treatment and the alleged connection between disability, disciplinary action and dismissal.

1. Appeal allowed. The Employment Tribunal’s original and reconsidered judgments striking out the discrimination claims were set aside. The strike-out application could not properly have succeeded and was not remitted.

2. A tribunal determining whether a claim has no reasonable prospect of success should state and apply that test. The respondent bears the legal burden of establishing that the claim has no reasonable prospect. It may succeed where the claimant’s case discloses no facts from which discrimination could be inferred, although the claimant may then have an evidential need to identify arguable facts. The Tribunal’s reasoning was troubling because it appeared to require the claimant to demonstrate prospects of success.

3. The Tribunal also wrongly conflated a merits determination of limitation with a strike-out application. A claimant bears the relevant burden on whether a claim is in time or whether time should be extended. However, at the strike-out stage the respondent had to show that the claimant had no reasonable prospect of establishing those matters. The Tribunal effectively decided the limitation issue after requiring the claimant to show an arguable continuing course of conduct.

4. The dismissal was alleged to be an act of victimisation and had occurred less than three months before presentation of the claim. The Tribunal did not address that point. Nor did it address the five comparators, despite their being a major part of the pleaded case and capable of supporting an inference of discrimination. It was not rational to overlook that material when considering strike-out.

5. There were obvious triable issues of fact. The Tribunal had conducted something close to a documentary mini-trial. Applying Jafri v Lincoln College, the Appeal Tribunal could conclude that, absent the errors, the result had to be refusal of strike-out. The respondent would not pursue its deposit-order application.

• Employment Appeal Tribunal: allowed the claimant’s appeal and set aside the strike-out and reconsideration decisions.
• Employment Tribunal at Huntingdon: Employment Judge James struck out the disability discrimination claims and, on reconsideration, maintained that decision. The unfair dismissal claim was allowed to proceed.