Adrian Arvunescu v Quick Release (Automotive) Ltd

A tribunal must identify the substance of a discrimination claim, particularly where it is advanced by a litigant in person, before deciding that it has no reasonable prospect of success. A pleaded allegation that an employer procured or assisted a connected company’s discriminatory refusal to employ may fall within section 112 of the Equality Act 2010, even if that provision is not expressly pleaded.

A widely drafted COT3 may compromise an existing section 112 claim where, on its particular facts, the alleged assistance is connected with the claimant’s former employment and a protected act concerning that employment. Section 112 does not invariably require that connection, but it was an essential factual feature of this claim.

The claimant had previously worked for the respondent and brought race discrimination proceedings following the termination of his employment. Those proceedings were settled by a COT3 in March 2018.

Before signing the COT3, he applied for engineering roles with a German company closely connected with the respondent. The German company rejected his application. He then brought proceedings alleging victimisation. The Employment Tribunal held both that the claim was compromised by the COT3 and that it had no reasonable prospect of success.

On appeal, the central issues were whether the pleaded facts disclosed a potential claim that the respondent knowingly helped the German company to victimise him, and whether that claim fell within the COT3 release.

1. The appeal was allowed on the strike-out ground but dismissed on the COT3 ground. The Tribunal had therefore correctly dismissed the proceedings overall, because the COT3 compromise barred the claim.

2. The pleaded case substantially alleged that the respondent, through its close connection with the German company, was responsible for the refusal to employ the claimant. Although the claim did not refer expressly to section 112 of the Equality Act 2010, it potentially alleged that the respondent knowingly helped the German company commit victimisation contrary to Part 5. The Tribunal should have identified that legal characterisation before striking out the claim.

3. The high threshold for striking out a discrimination claim was not met. The claimant had undertaken a protected act known to the respondent. There was material capable of supporting inferences of close recruitment links and communications between the companies, adverse attitudes after the earlier proceedings, and an unexplained rejection from a role similar to one for which he had previously been suitable. Direct documentary proof of discriminatory assistance was unlikely. It was not fanciful that a trial might establish knowing help within section 112.

4. The claim concerned the specific January 2018 application and rejection, rather than a continuing complaint about unidentified future posts. Any alleged victimisation and assistance had therefore occurred before the COT3.

5. Construed objectively, the COT3 released claims arising directly or indirectly out of, or in connection with, the former employment. Although a section 112 claim need not generally have a former-employment connection, this claim did: the protected act was the claimant’s earlier discrimination complaint concerning his employment with the respondent. The alleged assistance was thus indirectly connected with that employment and was compromised by the COT3.

• Employment Appeal Tribunal: Allowed the appeal against strike-out but dismissed the appeal against the conclusion that the COT3 barred the claim.
• Employment Tribunal, Watford: At a preliminary hearing, dismissed the claimant’s claims on the alternative bases that they were compromised by the COT3 and had no reasonable prospect of success.