Roy v Stephenson Harwood Services Ltd

Under Rule 37, a discrimination, harassment or victimisation claim should not be struck out where, taking the claimant’s case at its highest, a central dispute of fact bears on the alleged protected conduct, the employer’s knowledge, or the causation of the impugned decision. The Tribunal must not resolve such disputes through a mini-trial at a preliminary hearing.

That caution does not prevent strike-out where the pleaded facts, even accepted as true, disclose no link to a protected characteristic. The threshold for strike-out remains higher than that for a deposit order: a claim may have little reasonable prospect of success although it cannot properly be held to have none.

The Claimant, a fixed-term paralegal, alleged sex discrimination, sexual harassment and victimisation after her contract was not renewed. She alleged that a male colleague had used sex-related abusive language and that she had reported this to her line manager before the non-renewal decision.

The London (Central) Employment Tribunal struck out the claims as having no reasonable prospect of success. It also held, in the alternative, that the claims had little reasonable prospect of success and would have warranted deposit orders.

The Claimant’s appeal was confined to whether the Tribunal had wrongly struck out the claims without taking her case at its highest in a fact-sensitive discrimination dispute.

1. Appeal allowed in part. The Employment Tribunal’s strike-out of the sex harassment, sex discrimination and victimisation claims was set aside, except insofar as the claim concerned the 2 September bundles incident. That incident disclosed no allegation capable of linking the conduct to sex or sexual orientation, even if the Claimant’s account were accepted.

2. The Tribunal erred by treating the Claimant’s narrative as showing that the alleged sex-specific abuse, and any complaint about it, arose only after the line manager’s 4 November decision not to renew her contract. Read fairly and at its highest, her claim and grievance asserted that abusive conduct had occurred since the earlier bundles incident and that she had reported the insults on or shortly after 22 September.

3. That factual conflict was central. It bore on whether sex-related harassment had occurred, whether the September complaint was a protected act, whether the manager knew of the relevant allegations before deciding not to renew the contract, and whether those matters influenced that decision. The Tribunal should not have resolved that conflict by effectively conducting a mini-trial. Its approach was contrary to the guidance in Anyanwu and Ezsias.

4. The existence of disputed facts does not itself bar strike-out. As Ahir confirms, a Tribunal may strike out a discrimination claim involving factual dispute where there is truly no reasonable prospect of proving the facts necessary for liability. On these pleadings, however, the necessary high threshold was not met.

5. The alternative finding that the claims had little reasonable prospect of success was not appealed and stood. The matter was remitted to the Employment Tribunal to determine appropriate deposit orders after hearing from the Claimant about her means.

• Employment Appeal Tribunal: Allowed the appeal in part, set aside the strike-out of the surviving sex harassment, sex discrimination and victimisation claims, and remitted the case for consideration of deposit orders.
• Employment Tribunal, London (Central): Struck out the relevant claims under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, holding that they had no reasonable prospect of success. It held alternatively that they had little reasonable prospect of success.