Z Simmonds-Plummer v London Borough of Hammersmith & Fulham

A claim for post-termination harassment or victimisation must be assessed as such. It is erroneous to strike it out on the premise that the claimant must establish an actual dismissal after employment has already ended.

Under Equality Act 2010, section 108 permits post-termination claims where the alleged conduct arises from and is closely connected with the former employment relationship. The requirement that the conduct would have contravened the Act during that relationship imports the ordinary elements of the cause of action; it creates no additional hurdle.

Strike-out remains available in discrimination claims, but requires careful and sparing use. A claim should not be struck out where material facts are disputed, particulars may clarify the case, and the claim is not plainly bound to fail.

The claimant resigned while a disciplinary process was pending. The respondent later completed that process, found gross misconduct, and purported to dismiss her. She alleged that the post-resignation conduct was race- and sex-related harassment and victimisation, causing detriment to her future employment.

The Central London Employment Tribunal struck out the Equality Act claims on the basis that they depended on an actual summary dismissal, whereas the claimant's primary case was that her resignation had already ended the employment. On reconsideration, it maintained that view and added observations about the apparent merits.

The appeal concerned whether the pleaded claims were instead complaints of post-termination discrimination and whether the strike-out could nevertheless stand.

1. Appeal allowed. The Employment Tribunal misconstrued the particulars. Read fairly, they alleged that, after the claimant's resignation had ended the employment, the respondent knowingly continued the disciplinary process, made a gross-misconduct finding and purported to dismiss her. The alleged detriment and unwanted conduct were those post-termination acts, described in shorthand as an alleged summary dismissal. The Tribunal therefore erred by treating actual summary dismissal as an element the claimant had to establish.

2. The alternative basis for preserving the strike-out was not plainly and unarguably correct. The reconsideration judgment referred to only a “little” prospect of success, which was ambiguous in a strike-out context. The claimant had not had an opportunity to answer that basis; the respondent's knowledge of the resignation was disputed; and further particulars, including of protected acts and comparators, might clarify the case. The caution required for fact-sensitive discrimination claims therefore precluded strike-out at that stage.

3. Sections 108(1) and 108(2) of the Equality Act 2010 require a post-termination act to satisfy the ordinary statutory conditions that would apply if it occurred during employment. They do not impose an additional requirement that the disciplinary process was unlawful from its outset, that its continuation was independently unlawful, or that the gross-misconduct finding was one no reasonable employer could reach.

4. The claims were remitted. The respondent could renew its strike-out application or seek a deposit order, after appropriate clarification of the pleaded case if necessary.

• Employment Appeal Tribunal: Allowed the appeal and remitted the harassment and victimisation claims.

• Central London Employment Tribunal: Employment Judge Burns struck out the Equality Act claims for having no reasonable prospects of success; the decision was sent to the parties on 9 May 2020. On reconsideration, by a further judgment sent on 16 June 2020, the judge declined to vary or revoke that decision.