Javed v. Blackpool Teaching Hospitals NHS Foundation Trust

An Employment Tribunal should rarely strike out a race-discrimination claim where the decisive issue is whether treatment was because of race. That issue will commonly require all the evidence to be tested at a hearing. The absence of a contemporaneous allegation of race discrimination may bear on weight, but cannot itself establish that a claim has no, or little, reasonable prospect of success.

Nor may the Tribunal resolve disputed accounts, accept untested explanations, or conduct a mini-trial on documents alone. A deposit order requires a proper basis for doubting that the essential facts can be proved. Apparently plausible documentary explanations and a claimant's delay in alleging discrimination will not ordinarily supply that basis.

The claimant, a British person of Pakistani origin, brought numerous direct race-discrimination allegations against his former NHS employer following performance concerns, grievances, capability proceedings and dismissal.

The Manchester Employment Tribunal struck out most allegations under Rule 37(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It required deposits for further allegations, including dismissal, under Rule 39(1). The claimant appealed.

The central question was whether the Tribunal had lawfully treated the absence of contemporaneous race complaints, the employer's documentary explanations, and disputed meeting notes as establishing that the claims had no or little reasonable prospect of success.

1. Appeal allowed, save as to allegation 40. The Employment Tribunal erred in law by striking out the identified allegations and by making the deposit orders. The strike-out of allegation 40 was upheld because, as pleaded, its alleged period of delay was internally contradictory.

2. A race-discrimination claim often depends on proof of primary facts and an inference that race was a cause of the treatment. Direct documentary evidence of that causal connection will rarely exist. An Employment Tribunal cannot ordinarily decide that issue without hearing evidence and testing it in cross-examination. The exceptional approach described in North Glamorgan NHS Trust v Ezsias, [2007] ICR 1126, did not permit the Tribunal to determine these disputes on the papers.

3. The claimant's failure initially to describe grievances as race discrimination could be relevant to evidential weight. It could not disprove discrimination, nor justify a conclusion that a claim had no or little reasonable prospect of success. Employees may delay making such an allegation for many reasons, and may infer discrimination only after a sequence of events.

4. The Tribunal impermissibly accepted disputed employer notes, accepted untested explanations as reasonable, and repeatedly treated the absence of documents connecting treatment to race as decisive. Those steps amounted to a mini-trial on inadequate material. Internal grievance conclusions and apparently plausible paper explanations did not resolve the pleaded issue of causation.

5. Although a deposit order permits a provisional assessment of credibility and has a lower threshold than strike-out, Van Rensburg v The Royal Borough of Kingston-Upon-Thames, UKEAT/0095/07, requires a proper basis for doubting that essential facts can be established. No such basis existed here. The claims, other than allegation 40, were to proceed without remittal for further consideration of strike-out or deposits.

• Employment Appeal Tribunal: Allowed the appeal except as to allegation 40. It set aside the other strike-outs and all deposit orders, and held that no remittal was required.
• Manchester Employment Tribunal: In a judgment sent to the parties on 29 September 2016, struck out specified direct race-discrimination allegations and imposed deposits on further allegations, including dismissal.