Parkin v Leeds City Council

An Employment Tribunal should strike out a discrimination claim for having no reasonable prospect of success only in an obvious and plain case. Particular caution is required where pleadings are poor, since they may not represent the claimant’s final case, the issues may be clarified by case-management measures, and the burden of proof may assist the claimant.

The Tribunal must apply a two-stage process. It must first decide whether the strike-out ground is made out. If it is, the Tribunal must then decide whether strike-out is just in all the circumstances, including whether lesser measures could clarify the claim. A conclusion that the pleadings are inadequate does not itself answer that second question.

The claimant, a housing support worker, brought two Employment Tribunal proceedings against Leeds City Council alleging several forms of discrimination. Her claim forms and subsequent allegations schedule were lengthy, repetitive and difficult to follow. The claims concerned, among other matters, treatment during sickness absence, redeployment, job applications, grievances and earlier treatment following maternity leave.

At a preliminary hearing, Employment Judge Lancaster struck out all claims of sex discrimination and sex-related harassment on the basis that they had no reasonable prospect of success. He made deposit orders in respect of some other claims and permitted others to proceed. The claimant appealed the strike-out ruling.

The central issue was whether the Employment Judge had been entitled to find that the sex discrimination and harassment claims had no reasonable prospects of success and, if so, whether he had considered whether strike-out was just at that stage.

1. Appeal allowed. The Employment Judge erred in striking out the sex discrimination and harassment claims.
2. The claims were not properly particularised. However, it was incorrect to say that no acts had been alleged as sex discrimination or harassment. The allegations schedule contained factual assertions tied to dates and, in many instances, an assertion that the conduct amounted to sex discrimination.
3. The Judge was also wrong to conclude that there were no facts from which discrimination might be inferred. The claimant’s alleged treatment on return from maternity leave formed part of the background and could be relevant to an inference. The reasons did not adequately explain why that background could not support such an inference.
4. In any event, the Judge did not show that he had applied the required second stage of the strike-out exercise. Even if the claims then appeared to have no reasonable prospects of success, he had to decide whether striking them out was just in all the circumstances. That required consideration of lesser measures and of the fact that other claims arising from the same factual history would continue.
5. The fact that deposit orders were made on other heads of claim did not demonstrate that the Judge had addressed the distinct second-stage question for the claims struck out. The sex discrimination and harassment claims were remitted for case management with the claimant’s remaining claims. The EAT observed that, in difficult and prolix cases, an early full hearing may sometimes avoid delay and repeated interlocutory appeals.

• Employment Appeal Tribunal: allowed the claimant’s appeal against the Employment Tribunal’s strike-out of sex discrimination and harassment claims, and remitted those claims for case management.
• Employment Tribunal: Employment Judge Lancaster struck out the sex discrimination and harassment claims on the basis that they had no reasonable prospect of success. No citation was stated.