Kwele-Siakam v The Co-Operative Group Ltd (Practice and Procedure)

A discrimination or victimisation claim should be struck out for having no reasonable prospect of success only in the clearest case. Where the employer’s reason for the impugned treatment is itself a central disputed fact, the claim will ordinarily require a full hearing at which evidence can be evaluated.

A strike-out application must not become a trial of the merits. Lengthy oral evidence, cross-examination and credibility findings directed to the central issue create a serious risk of injustice, particularly where the respondent gives no evidence capable of being tested. Clear jurisdictional, limitation or legal objections may nevertheless justify strike-out.

The Claimant, a warehouse operative, brought claims of direct and indirect race discrimination and victimisation against his employer. An Employment Judge struck out all claims under Rule 37 of the Employment Tribunals Rules of Procedure 2013 after a two-day preliminary hearing at which the Claimant gave oral evidence and was extensively cross-examined.

The Employment Judge found the Claimant not credible and concluded that there was no evidence from which discrimination could be inferred. Permission to appeal was granted in respect of the direct discrimination and victimisation claims, but not indirect discrimination. The central issue was whether the strike-out hearing had impermissibly determined the disputed reason for the employer’s treatment.

1. Appeal allowed. The Employment Judge erred in striking out the direct discrimination and victimisation claims. Strike-out under Rule 37(1)(a) is draconian and should be reserved for the clearest cases. Discrimination claims may be struck out on a clear jurisdictional, limitation or legal point, but otherwise require extreme hesitation.

2. The fact that many events were undisputed did not make the claims suitable for strike-out. The central question was the employer’s reason for those events. That was a disputed fact requiring findings and potentially inferences from the surrounding evidence. A claim in which that central fact is in issue will be most unlikely to be capable of determination on a strike-out application.

3. The procedure adopted was inappropriate. A two-day hearing with documentary bundles, lengthy cross-examination and findings that the Claimant was not credible went beyond a permissible preliminary assessment and effectively determined the principal merits issue. It created a risk of injustice, especially as the Respondent called no evidence which the Claimant could test. Such a procedure also risks an impermissible trial within a trial if strike-out fails.

4. The strike-out order was set aside for direct discrimination and victimisation. It was not remitted for reconsideration, consistently with the overriding objective and the need to avoid further interlocutory litigation. The remaining preliminary issues were remitted to a different Employment Judge. The strike-out of the indirect discrimination claim remained in force.

• Employment Appeal Tribunal: Allowed the appeal from the strike-out of the direct discrimination and victimisation claims and set that order aside. The remaining preliminary issues were remitted to a different Employment Judge.
• Employment Tribunal: Employment Judge Butler struck out the discrimination and victimisation claims under Rule 37 of the Employment Tribunals Rules of Procedure 2013 by a judgment sent to the parties on 18 May 2016. The indirect discrimination strike-out was not permitted to proceed on appeal and remained in place.