Sokratis Lasdas v Vanquis Bank PLC & Anor.

An employment tribunal must identify a litigant in person’s discrimination claim by its substance, using a fair and non-technical reading of the pleadings and the clarification obtained at a preliminary hearing. The tribunal has latitude in managing that clarification, but not in legally mischaracterising the claim.

A requirement that a worker or contractor pass specified pre-employment checks may constitute a provision, criterion or practice for indirect-discrimination purposes. Where the alleged case is that respondents imposed that requirement, the claim concerns their primary liability for their own PCP, rather than merely liability for the checking provider’s acts.

A deposit order cannot stand where it was made by reference to a different cause of action. If the correctly identified indirect-discrimination claim cannot properly be described as having little reasonable prospect of success, the order must be quashed.

The claimant, a Greek national, accepted an assignment arranged through the second respondent with the first respondent. The assignment was revoked after Experian could not complete pre-employment screening using his Greek identity card. He contended that the respondents required him to satisfy Experian’s particular checks despite alternative means of checking being available.

At an open preliminary hearing, the London Central Employment Tribunal characterised the complaint as direct race discrimination and ordered deposits of £250 against each respondent on the basis that the claims had little reasonable prospect of success. The claims were later struck out when the deposits were not paid.

The claimant appealed the deposit orders. The central issues were whether the tribunal had mischaracterised the substance of his claim and whether an indirect race-discrimination claim against either respondent had little reasonable prospect of success.

1. Appeal allowed. The tribunal erred in law by treating the claimant’s case as direct race discrimination. A fair, non-technical reading of the ET1 did not unequivocally plead direct discrimination. The tribunal was entitled to seek clarification, but its eventual legal characterisation was wrong.

2. The substance of the claim identified at the open preliminary hearing was indirect race discrimination. The alleged PCP was the requirement that workers or contractors pass Experian’s pre-employment checks as a condition of an offer of work. The alleged disparate impact was on non-British nationals who might be less likely to possess identity documents meeting Experian’s requirements.

3. The claim alleged each respondent’s primary liability under Equality Act 2010, ss 39(1) or 41(1), for applying that PCP. It was therefore wrong to treat the complaint simply as one concerning liability for Experian’s conduct. Whether the second respondent was a joint primary actor, an agent of the first respondent, or merely a messenger required factual inquiry. On the available material, neither claim could properly be regarded as having little reasonable prospect of success.

4. The deposit orders were made on the wrong legal basis and had to be quashed. Applying Jafri v Lincoln College, [2014] EWCA Civ 449, no outcome other than refusal of the requested deposit orders would have been possible had the claims been correctly identified.

5. The claims were reinstated and remitted to the London Central Employment Tribunal for a closed preliminary hearing, identification of all issues for final hearing, and appropriate case-management orders.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, quashed the aggregate £500 deposit orders, reinstated the claims, and remitted them to the London Central Employment Tribunal.

• London Central Employment Tribunal: Following an open preliminary hearing on 20 February 2020, characterised the claims as direct race discrimination and made deposit orders of £250 against each respondent. It later struck out the claims for late payment of those deposits.

• Related appeals: Separate appeals from the strike-out and a refusal of reconsideration were stayed pending any appeal from this judgment. The EAT stated that those appeals would be dismissed as moot if this judgment stood.