R Thomas v Expansys UK Limited

An Employment Tribunal may strike out a discrimination claim under Rule 37(1)(a) only where it has no reasonable prospect of success. The threshold remains high, particularly in fact-sensitive discrimination claims and where the claimant is unrepresented. The tribunal must consider the pleaded case and relevant core documents, rather than deciding disputed facts without evidence.

However, a claim concerning a discriminatory dismissal may properly be struck out where the claimant has had repeated opportunities to identify a pleaded or evidential link between the protected characteristic or protected acts and the reasoning of the sole decision-maker. Allegations about other employees, harsh treatment, or historic incidents do not by themselves provide that causal connection.

The claimant appealed against the Employment Tribunal’s decision of 19 October 2020 to strike out her complaints of direct race discrimination, direct sex discrimination, harassment and victimisation. The claims were confined in case management to whether her dismissal was unfair or discriminatory.

The dismissal decision was made solely by Mr Capp. The Tribunal held that the claimant’s material did not identify a sufficient connection between his decision and race, sex, or any protected act. It later refused reconsideration. A separate unfair-dismissal claim had subsequently failed.

The appeal challenged the strike-out test, five matters said to permit an inference of discrimination, and the fairness of asking an unrepresented claimant at the hearing to define her case.

1. Appeal dismissed. The Employment Judge made no error of law and reached no perverse conclusion in striking out the discrimination and victimisation complaints.

2. Rule 37(1)(a) of the ET Rules 2013 imposes a high threshold. Strike-out is a draconian step, especially in discrimination claims, which are commonly fact-sensitive and involve a shifting burden of proof. A tribunal must ordinarily take the claimant’s case at its highest and should consider the pleaded case and relevant supporting material, particularly where the claimant is unrepresented.

3. Those safeguards did not prevent strike-out here. The complaint concerned the allegedly discriminatory decision to dismiss, and Mr Capp was the sole decision-maker. The claimant had several opportunities, in her pleadings, further material, witness statement and at the hearing, to identify how his reasoning was influenced by race or sex. She did not do so. Allegations concerning other employees could have only limited inferential value and were not a substitute for a pleaded causal connection to Mr Capp.

4. The five matters advanced on appeal did not alter that conclusion. They either concerned persons other than Mr Capp, did not establish the alleged factual basis, or did not permit an inference that his dismissal decision was discriminatory. A harsh dismissal, without more, was insufficient to shift the burden of proof.

5. The claimant’s criticisms of treatment did not amount to protected acts where they did not allege discrimination. In any event, there was no pleaded information or evidence that Mr Capp knew of a protected act or that it influenced dismissal.

6. Although being asked to explain her case may have caused the claimant stress, it was legitimate for the Tribunal to ask. The answer given was not decisive. The Judge had considered the core documents and did not resolve factual disputes or make adverse findings of fact. The later unfair-dismissal judgment concerned different issues and did not supply the missing connection.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal’s strike-out judgment of 19 October 2020.
• Employment Tribunal: struck out the complaints of direct race discrimination, direct sex discrimination, harassment and victimisation, and refused reconsideration on 24 February 2021.