Mechkarov v Citibank NA (Race Discrimination : Post Employment)

In discrimination claims, strike-out is appropriate only in the clearest cases. Where core facts depend, even partly, on oral evidence, they should not ordinarily be determined without a full hearing. The claimant’s case must generally be taken at its highest. A claim may be struck out where undisputed contemporaneous documents conclusively disprove it, or are totally and inexplicably inconsistent with it. Tribunals must not conduct a mini-trial of disputed oral evidence at a preliminary hearing.

The claimant brought various employment and post-employment discrimination claims against his former employer. At a preliminary hearing, the Employment Tribunal struck out the post-termination discrimination and victimisation claims after hearing oral evidence from the claimant, a former manager and an investigator.

The claimant appealed. The central issue was whether the Tribunal had lawfully determined disputed core facts and struck out the claims without a full hearing.

1. The appeal was allowed on the principal issue. The application to strike out the post-termination claims was remitted to a different Employment Judge for redetermination.
2. The governing approach in discrimination cases was that only the clearest case should be struck out. Core factual issues turning to any extent on oral evidence should not be decided without hearing that evidence at a full hearing. The claimant’s case should ordinarily be taken at its highest.
3. A strike-out remained permissible where the claimant’s case was conclusively disproved by undisputed contemporaneous documents, or was totally and inexplicably inconsistent with them. The Tribunal should not conduct an impromptu mini-trial to resolve disputed core facts. These principles were supported by Anyanwu v South Bank Students’ Union [2001] UKHL 14, Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 and Tayside Public Transport Company Ltd v Reilly [2012] CSIH 46.
4. The Employment Judge had impermissibly resolved core disputes by oral evidence. Important contemporaneous documents, including investigation records and internal communications, had not been produced and might materially affect the claims.
5. The Judge had also failed adequately to consider whether the former employment relationship engaged section 108 of the Equality Act 2010, whether the alleged conduct was connected with nationality, and whether the respondent acted because it believed the claimant might do a protected act under section 27(1)(b) of that Act.
6. The remitted Judge could consider newly produced documents. If they conclusively disproved the claims or were totally and inexplicably inconsistent with them, strike-out would remain available. A deposit order could also be considered. The respondent was ordered to pay the appeal fees of £1,600.

• Employment Tribunal: Employment Judge Warren struck out the post-termination discrimination claims in a Reserved Judgment sent on 10 August 2015.
• Employment Appeal Tribunal: Appeal allowed on the third ground; the strike-out application was remitted to another Employment Judge for redetermination.