Silape v Cambridge University Hospitals NHS Foundation Trust

An Employment Tribunal should strike out a discrimination claim for having no reasonable prospect of success only in a clear and exceptional case. It must ordinarily take the claimant’s case at its highest and should not resolve a central factual dispute without evidence. Strike-out may be appropriate where the pleaded case is conclusively disproved, or is wholly and inexplicably inconsistent, with undisputed contemporaneous documents.

The Tribunal must assess each pleaded claim separately. It must not attribute defects in time-barred or weak allegations to other allegations which identify the asserted treatment, comparators and factual basis for discrimination. A disputed question as to the reason for treatment ordinarily requires determination at a hearing.

The claimant, a nurse who resigned after a period of sickness absence, brought claims including race and disability discrimination. Following preliminary hearings, the Employment Tribunal dismissed claims which were out of time and struck out the two remaining race-discrimination claims and the disability-discrimination claim as having no reasonable prospect of success. It also stated that it would otherwise have imposed deposit orders.

At a preliminary appeal hearing, permission was refused on the time-limit ground but granted on the strike-out of the remaining race and disability claims. The respondent did not resist the appeal. The central issue was whether the Tribunal had lawfully concluded that those claims had no reasonable prospect of success and had given adequate reasons.

1. Appeal allowed. The strike-out of the two in-time race-discrimination claims and the disability-discrimination claim was set aside. The alternative deposit-order decision was also set aside.

2. Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required a cautious approach. Applying the principles summarised in Mechkarov v Citibank NA [2016] ICR 1121, discrimination claims should be struck out only in the clearest cases. Core factual issues which depend on oral evidence should not be decided at strike-out, and the claimant’s case should ordinarily be taken at its highest.

3. The Tribunal had not applied that approach. It did not refer to the governing authorities or show that it had exercised the requisite caution. It also wrongly concluded that the claimant had failed to identify less favourable treatment and comparators for the two in-time race claims. Its own summary identified the alleged restrictions on access to the workplace and systems, the comparators, and the alleged unequal handling of grievances.

4. The Tribunal impermissibly grouped the claims together. Although some allegations were weak and were properly dismissed as time-barred, that did not justify striking out distinct live claims which had been pleaded with sufficient factual content and some prospect of success.

5. For the disability claim, the Tribunal accepted the respondent’s asserted reason for the treatment rather than taking the claimant’s case at its highest. The alleged failure to consider alternative employment, and the treatment of other employees on long-term sickness absence, raised an important factual issue as to the reason for the treatment. That issue could not be resolved without evidence.

6. No further preliminary hearing was ordered. The live discrimination claims had some prospect of success, three preliminary hearings had already occurred, and the unfair-dismissal claim was proceeding. The Employment Tribunal was left to give directions for the full hearing and to settle the issues.

• Employment Appeal Tribunal: allowed the appeal and set aside the strike-out and alternative deposit-order decisions: [2017] UKEAT 0285_16_2510.
• Employment Appeal Tribunal (Kerr J): at a preliminary hearing on 29 March 2017, refused permission on the time-limit ground but permitted the strike-out grounds to proceed.
• Employment Tribunal: in a reserved judgment sent in July 2016, dismissed most race claims and race-related harassment as time-barred, struck out the remaining race and disability claims, and stated that it would alternatively have ordered deposits.