MR L GARCIA v BRITISH AIRWAYS PLC

A discrimination claim involving disputed facts may be struck out only in an exceptional case. The tribunal must remain alert to the danger of deciding factual disputes without oral evidence. However, strike-out is permissible where the claimant has only a very weak basis for inferring discrimination and contemporaneous material provides a plausible innocent explanation which the claimant cannot undermine.

An amendment application requires consideration of all relevant circumstances in the interests of justice. Relevant matters include the nature of the amendment, limitation, delay and its explanation, prejudice, and, where appropriate, the apparent merits. An appellate tribunal will interfere only within the limited scope allowed by the wide discretion of the employment tribunal.

The claimant applied for a Spanish-speaking customer service representative role with the respondent and failed the assessment process. He brought an age-discrimination claim, relying principally on the fact that candidates had been asked to provide identification containing their dates of birth.

Following disclosure, he sought to add direct disability-discrimination and race-discrimination claims. He relied respectively on an assessor’s note that he had struggled to articulate and a reference to a strong French accent. He also sought to advance indirect-discrimination allegations.

At a preliminary hearing, Employment Judge Smail struck out the age claim and refused permission to amend. The claimant appealed. The central issues were whether the age claim could exceptionally be struck out and whether the refusal of the amendments disclosed an error of law.

1. Appeal dismissed. The notice of appeal disclosed no reasonable grounds for bringing the appeal under rule 3(10) of the EAT Rules.

2. The Employment Judge was entitled to treat this as an exceptional case in which the age-discrimination claim had no reasonable prospect of success. The claimant’s inference rested solely on the universal request for a passport. There was no basis to doubt the respondent’s explanation that the request concerned identity, nationality and the right to work, or to doubt the contemporaneous scoring records. The appointment data, including appointments of persons over 50, also strongly undermined the proposed inference. Applying [2017] EWCA Civ 1392, the judge had properly recognised the high hurdle for strike-out of a discrimination claim involving factual issues.

3. The Employment Judge also acted within the broad discretion governing amendments. The disability claim was weak: in context, the note that the claimant struggled to articulate concerned the content of his explanation rather than its delivery. The race claim was likewise weak, particularly because the claimant had passed the assessment element containing the reference to his accent. The claims were out of time, the application followed disclosure by more than three months, and there was no good explanation for the delay. Those were relevant factors under [1996] ICR 836.

4. The further indirect-discrimination points did not assist the appeal. No application had been made to add them to the notice of appeal. In any event, the proposed age-discrimination allegation did not identify a group disadvantage from producing a passport, and the alleged race and disability practices had not been advanced before the Employment Judge.

• Employment Appeal Tribunal: Appeal dismissed at a rule 3(10) hearing. The Tribunal upheld Employment Judge Smail’s preliminary decision to strike out the age-discrimination claim and refuse amendments to add disability- and race-discrimination claims.
• Employment Tribunal: At a preliminary hearing, reasons sent on 1 June 2020, Employment Judge Smail struck out the age-discrimination claim and refused permission to amend.