Sivanandan v Independent Police Complaints Commission & Anor

A discrimination claim should be struck out for having no reasonable prospect of success only after careful consideration of all available material. The threshold is high, particularly where the claim is fact-sensitive and the claimant is unrepresented.

Statistics and contemporaneous documents which are capable of showing that a recruitment requirement disadvantaged a protected group, and the claimant in the same way, can make an indirect-discrimination claim arguable. A tribunal must not overlook that material when applying Rule 37(1)(a) of the Tribunal Rules 2013.

A deposit order may nevertheless be justified for a weak direct-discrimination claim. An appearance-of-bias complaint fails unless the fair-minded and informed observer would find a real possibility of bias.

The appellant, an Asian woman of Sri Lankan origin, applied for an investigator post with the first respondent. Her application failed at the initial paper sift. She alleged direct and indirect race and sex discrimination in the recruitment exercise.

At a preliminary hearing, the Employment Judge struck out the indirect-discrimination claims under Rule 37(1)(a) of the Tribunal Rules 2013. The Judge declined to strike out the direct-discrimination claims but required a deposit. The appellant also alleged an appearance of bias by the Employment Judge.

On appeal, the central issues were whether five asserted PCPs gave the indirect claims an arguable basis, whether the deposit order was lawful, and whether the hearing or reasons gave rise to apparent bias.

1. Appeal allowed in part. The indirect-discrimination claims founded on the first two PCPs were reinstated. The appeal otherwise failed.

2. The Employment Judge erred in striking out the claims based on the requirements to demonstrate recent investigative experience and to demonstrate it in public or private employment rather than voluntary work. The initial-sift statistics were capable of showing group disadvantage under section 19(2)(b) of the Equality Act, and personal disadvantage under section 19(2)(c). Internal documents also supported an arguable link between lack of work experience and the filtering-out of BME applicants. On a careful consideration of all available material, the claims could not properly be treated as having no reasonable prospect of success.

3. The asserted tiered-sift PCP added nothing to the first PCP. The inability to apply for both substantive and trainee posts was a criticism of the recruitment process, not an arguable PCP causing the pleaded group disadvantage. The alleged preferential treatment of police or listed occupations had no factual foundation: the guidance covered many roles, included employment-law lawyers and consultants, and required evidence of actual investigative experience. There was no evidence or explanation capable of showing disadvantage to BME or female applicants from these three matters. Their strike-out was upheld.

4. The court did not need to resolve the possible inconsistency between Essop and Chez concerning the need to prove why a PCP disadvantages the group. The first two claims survived even on the Essop approach, while the conclusion on the remaining PCPs was unaffected.

5. The deposit order for the direct-discrimination claims was lawful. A bare difference of protected status and treatment could not shift the burden of proof. The Employment Judge was entitled to assess the limited evidence of investigative experience and conclude that the claims had little reasonable prospect of success, while preserving them for determination after evidence.

6. The apparent-bias complaint failed. Applying the fair-minded and informed observer test, the evidence did not show pre-judgment, prejudice, procedural unfairness, or disparaging treatment. An inaccurate elision of the appellant's qualifications and experience was unfortunate, but did not create a real possibility of bias.

• Employment Appeal Tribunal: Appeal allowed only as to the indirect race and sex discrimination claims based on the first two PCPs. Those claims were reinstated.
• Employment Tribunal: At a preliminary hearing on 28 November 2013, Employment Judge Porter struck out the indirect-discrimination claims and made a deposit order for the direct-discrimination claims.