Malik v Birmingham City Council & Anor

A discrimination claim should be struck out only in the clearest case. The tribunal must take the claimant’s case at its highest and, particularly where the claimant is unrepresented, consider the pleaded case and relevant supporting material rather than requiring the claimant to identify every evidential basis orally.

Multiple allegations of differential treatment, viewed cumulatively with contextual evidence, may provide the necessary additional material for an inference of discrimination. An employer’s untested explanation should be treated with care at the strike-out stage. A failure to maintain contact contrary to an employer’s sickness-absence policy may be capable of contributing, however slightly, to a cumulative breach of trust and confidence and so constitute a last straw.

The claimant appealed from an Employment Tribunal decision which struck out his claims of direct race discrimination and constructive unfair dismissal under Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. His victimisation claim was allowed to continue.

He alleged a course of discriminatory and unsupportive treatment, including transfers, failures to investigate his complaints, differential treatment in relation to leave and stereotyped remarks. He resigned after a lengthy suspension and sickness absence, relying in part on the Council’s failure to contact him despite its policy. The Tribunal regarded the discrimination case as unsupported by facts capable of showing racial causation and the absence of contact as wholly innocuous.

The central issue was whether either claim could properly be said to have no reasonable prospect of success.

1. Appeal allowed. The Employment Tribunal erred in striking out both the direct race-discrimination and constructive-dismissal claims. The EAT substituted a decision that each claim had a reasonable prospect of success.

2. The Tribunal stated that it was taking the claimant’s case at its highest, but did not analyse the detailed witness statement or supporting material. That was a significant failure. The material included alleged comparators, evidence of different procedures, contextual allegations of negative attitudes towards Asians and Muslims, alleged stereotyping, and a pattern of treatment after a change in management. The Tribunal was required to consider that material, especially because the claimant was unrepresented, and to explain why it did not support the claim if that was its conclusion.

3. The claim was not confined to a bare difference in status and treatment. Although no individual allegation necessarily established discrimination on its own, the allegations could cumulatively provide the additional material from which an inference of discrimination might be drawn. The Tribunal could not resolve the issue by accepting untested non-discriminatory explanations from the respondent. The case might be weak, but it was not bound to fail. The inadequate reasons were also not compliant with Meek.

4. On constructive dismissal, the Tribunal correctly identified the alleged last straw as the failure to contact the claimant during sickness absence. It erred in treating that omission as necessarily wholly innocuous. The Council’s policy provided for contact every two or three weeks and did not state an exception for stress or anxiety. A failure to comply with that policy could contribute, even slightly, to an alleged cumulative breach of the implied term of trust and confidence. An email seeking to arrange contact the day after the resignation further undermined the suggested basis for treating the earlier omission as innocuous.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and substituted a decision that the struck-out claims had reasonable prospects of success.
• Employment Tribunal, Birmingham: Struck out the direct race-discrimination and constructive-unfair-dismissal claims under Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, while permitting the victimisation claim to proceed.