Walters v. Avanta Enterprise Ltd

A discrimination claim should be struck out for having no reasonable prospect of success only with particular caution. The tribunal must identify the claimant’s real case and assess it on the pleaded material at its highest. A claim may require comparison with a hypothetical comparator where no actual comparator is available.

A black person alleged to have been treated adversely because she was regarded as behaving like a white person relies on race, not on a separate ethnic group defined by behaviour. It was arguable that the proper comparator was a hypothetical white employee who behaved as a white employee and was otherwise in materially similar circumstances. A victimisation claim may nevertheless be struck out where no pleaded detriment is linked to a protected act.

The claimant, a black Caribbean job coach, appealed against an Employment Judge’s decision to strike out her claims of disability discrimination, direct race discrimination, harassment and victimisation as having no reasonable prospect of success.

Only the direct race discrimination and race victimisation claims proceeded to this appeal. The claimant alleged that her manager’s reference to her as a “coconut” or “Bounty bar” evidenced an adverse attitude which later led to less favourable treatment, including a performance improvement plan. She also alleged that the respondent had mishandled her post-employment grievance.

The central issues were whether the direct race discrimination claim required consideration of a hypothetical white comparator, and whether the pleaded material disclosed a victimisation claim with a detriment caused by a protected act.

1. The appeal was allowed in part. The striking-out of the direct race discrimination claim was set aside. That claim was to proceed to a full Employment Tribunal hearing. The appeal against the striking-out of victimisation was dismissed.

2. Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, strike-out for no reasonable prospect of success is a serious step. Discrimination claims particularly require caution, as recognised in Anyanwu v South Bank Students’ Union [2001] IRLR 305. Where central facts are disputed and evidence has not been heard, strike-out will ordinarily be exceptional. There is, however, no separate rule preventing a race discrimination claim from being struck out where the claim is unsuitable to proceed.

3. The Employment Judge erred by failing to identify the claimant’s real case. The claimant did not rely on the manager’s earlier remark as the discriminatory act. She relied on it as evidence of the manager’s attitude when subsequently arranging work and placing her on a performance improvement plan.

4. A black person’s allegedly non-stereotypical, “white” behaviour is not itself a group falling within Equality Act 2010 section 9(1). Nevertheless, the claimant’s case was still one of treatment because she was black. It was strongly arguable that the appropriate comparison under section 23(1) was with a hypothetical white employee who spoke and behaved as a white employee, was otherwise in materially similar circumstances, and was also not meeting targets.

5. The Employment Judge gave undue weight to the time between the remark and the performance improvement plan, the manager’s apology, and the claimant’s immediate reaction. The ET1 did contain a race discrimination allegation. A conclusion that the claimant was not thought likely to discharge the burden of proof did not apply the distinct and higher test of whether the claim had no reasonable prospect of success.

6. The victimisation claim was different. The claimant accepted that the ET1 did not link the asserted detriment, namely alleged downgrading of her grievance, to a protected act. The alleged detriment was unexplained. The Employment Judge therefore did not err in striking out victimisation contrary to section 27(1)(a) and section 27(2)(d).

• Employment Appeal Tribunal: appeal allowed in part; the direct race discrimination claim was restored and remitted for a full hearing, while the victimisation appeal was dismissed: [2017] UKEAT 0127_17_2112.
• Employment Tribunal: Employment Judge Wade, sitting alone, struck out all claims as having no reasonable prospect of success in a decision sent to the parties on 31 March 2015.