Ukegheson v Haringey London Borough Council

A claim should be struck out for having no reasonable prospect of success only in rare and obvious cases. The pleaded allegations must ordinarily be taken at their reasonable highest, unless conclusively disproved by documents. A tribunal must not conduct a mini-trial or resolve disputed central facts on a preliminary hearing.

In constructive dismissal claims, the alleged last straw must be assessed in the context of the employment relationship and the totality of the conduct. In discrimination claims, a difference in protected characteristic and treatment alone may be insufficient, but a disputed or false explanation may provide the necessary additional basis. A reasonable-adjustments claim requires an alleged failure to take a reasonable step to avoid disadvantage; failure merely to consider adjustments is insufficient.

The claimant, a deputy manager, resigned and presented claims including constructive unfair dismissal, race, sex, religious and disability discrimination, harassment, victimisation and unlawful deduction of wages. At a preliminary hearing, conducted in the claimant’s absence, the Employment Judge considered selected documents and information from the respondent’s manager and struck out the whole claim.

The claimant appealed. The central issue was whether the Employment Judge had impermissibly resolved disputed facts and assessed individual incidents in isolation, rather than taking the pleaded case at its highest and asking whether any claim was plainly bound to fail.

1. Appeal allowed in part. The Employment Judge had erred by finding disputed facts, relying partly on what the respondent’s manager said at the hearing, reviewing only a small selection of a large bundle, and conducting what was effectively a mini-trial. The correct approach was to take the claimant’s allegations at their reasonable highest, unless plainly and conclusively contradicted by relevant documents. The power to strike out remained available, but had to be exercised sparingly and cautiously.
2. The constructive dismissal claim was not plainly and obviously bound to fail. The meaning of the final email depended on the context of the relationship. The alleged last straw had to be considered together with the preceding conduct, because the totality of the relationship, rather than isolated events, could establish a repudiatory breach.
3. The race and sex discrimination claims could not be said to be plainly unarguable. A difference of treatment and protected characteristic alone showed only a possibility of discrimination. However, a disputed or false explanation for different treatment could provide the additional material required to support an inference of discrimination. The factual issues required evidence.
4. The religious discrimination claim was properly struck out on the pleaded case. Even taking the allegations at their highest, the alleged conduct appeared to have been directed at the claimant’s general relationship with his manager, rather than because of his religion.
5. The disability reasonable-adjustments claim was properly struck out. Under Equality Act 2010, section 20(3), the duty concerned taking reasonable steps to avoid the disadvantage. A complaint that the employer failed merely to consider making an adjustment did not itself allege a failure to make an adjustment. The church-attendance allegation also involved a tenuous chain of causation.
6. The victimisation claim was properly struck out. It required a protected act within section 27 of the Equality Act 2010, and the employer must have known of that act. The earlier emails contained no express or implied allegation of discrimination. The later reference to a claim that would follow termination was speculative and did not provide realistic prospects of establishing the necessary detriment.
7. The harassment claims and unlawful-deduction claim were not plainly bound to fail. Conduct influenced sufficiently by race or sex could be related to those characteristics for the purposes of section 26 of the Equality Act 2010. The pleaded allegation that wages had been withheld or deducted also required determination on evidence.
8. The claims not struck out were remitted for further hearing before a different Employment Tribunal.

• Employment Appeal Tribunal: allowed the appeal except in respect of the religious discrimination, disability discrimination and victimisation claims. The remaining matters were remitted for further hearing before a different Tribunal.
• Employment Tribunal: Employment Judge Manley struck out the entirety of the claimant’s claims at a preliminary hearing.