Mechkarov v. Citibank N.A.

On a strike-out application in a discrimination case, where material facts are disputed, the tribunal must take the claimant’s case at its highest. It should not resolve those disputes by relying on evidence heard for a different issue, particularly after refusing applications for further evidence or disclosure.

Whether alleged post-employment conduct has a sufficiently close connection with employment is fact-sensitive. A claimant’s pleaded explanation of why treatment was connected to nationality may be sufficient to prevent strike-out if it provides an arguable factual basis for the allegation.

The claimant appealed from the Employment Tribunal’s reserved judgment, promulgated on 10 August 2015. The Tribunal upheld a settlement agreement as barring most claims, held the pre-termination discrimination claims out of time with no continuing act and no just and equitable extension, and struck out post-employment discrimination and victimisation claims as having no reasonable prospects of success.

At this Rule 3(10) hearing, the principal challenge concerned the strike-out of the post-employment claims. The central issue was whether the Tribunal had impermissibly resolved disputed facts instead of taking the claimant’s case at its highest.

1. The appeal was permitted to proceed in part to a Full Hearing. The challenge to the validity of the settlement agreement disclosed no arguable error of law. The Employment Judge had heard evidence from the claimant and the persons alleged to have exerted duress, and was entitled to make findings on that evidence.

2. The challenge to the dismissal of the in-employment discrimination claims also disclosed no arguable error. The Tribunal was entitled, having considered the pleaded case and evidence concerning the alleged threats and contact between the claimant and his former manager, to find no continuing discriminatory state of affairs. The decision not to extend time was not challenged.

3. The post-employment complaints were different. The Tribunal had correctly directed itself by reference to [2001] ICR 391 and [2011] UKEAT 0399_09_1803 that disputed facts on a strike-out application must be approached by taking the claimant’s case at its highest. There was, however, an arguable basis for saying that it did not follow that approach. It may instead have accepted conflicting evidence heard in relation to duress, a separate issue, when deciding the post-termination allegations.

4. The point was material because the sufficiently close connection between the alleged acts and employment under Equality Act section 108 was fact-sensitive. The Tribunal’s alternative conclusion that the claimant had pleaded no facts supporting a nationality-based explanation was also arguable, since his pleaded case identified Bulgarian origin as a reason for the alleged treatment. The same arguable defect affected the victimisation conclusion, which was based on partially evidenced findings.

The merits were not determined. The post-employment discrimination and victimisation grounds were allowed to proceed to a Full Hearing; the remaining grounds did not proceed.

• Employment Appeal Tribunal: On a Rule 3(10) application, permitted the appeal to proceed to a Full Hearing only in respect of the strike-out of the post-employment discrimination and victimisation claims.

• Employment Tribunal: Employment Judge Warren’s reserved judgment, with reasons promulgated on 10 August 2015, upheld the settlement agreement, dismissed the in-employment discrimination claims as out of time, and struck out the post-employment claims.