Parag Bahad v HSBC Bank PLC

A discrimination claim should not be struck out where, taking an unrepresented claimant’s pleaded case and supporting material at its highest, there are material factual disputes which may require disclosure and oral evidence. A tribunal must not require proof of a causal link before disclosure where the issue is whether such evidence may realistically emerge.

Strike-out remains available for a protected-disclosure detriment claim that is genuinely fanciful and has no reasonable prospect of success. The tribunal must distinguish a merely unproved allegation from one lacking any realistic evidential basis.

The claimant, acting without legal representation, alleged race and religious discrimination and detriment for protected disclosures after the termination of his engagement and the failure to secure another role.

At a telephone preliminary hearing listed for case management, the Employment Tribunal struck out all claims. The first respondent had not applied for strike out and the hearing had not been listed to determine such an application.

The claimant appealed against the strike-outs. The central issue was whether the tribunal had correctly concluded, before disclosure or oral evidence, that the discrimination and protected-disclosure claims had no reasonable prospect of success.

1. Appeal allowed in part. The strike-outs of the race and religious discrimination claims were set aside. The protected-disclosure detriment strike-out was upheld.

2. The tribunal erred in finding that there were no core factual issues on the discrimination claims. The claimant alleged that his manager wanted him to resign, gave no initial reason for ending his engagement, had no genuine performance concern, and treated him differently from white comparators. He also alleged that he was perceived as different because of his religious dietary restrictions. Those matters required factual investigation.

3. The tribunal failed to take the unrepresented claimant’s case at its highest. It wrongly expected him, before disclosure, to produce evidence of a causal link between his protected characteristics and the detriment. It should have considered his claim form and additional material rather than relying on answers obtained under pressure in a telephone hearing which had not been listed for strike out.

4. The protected-disclosure claim was different. Its alleged causal chain depended on confidential disclosures being revealed to the manager and that manager influencing recruitment for a role with which he had no connection. The tribunal was entitled to regard that allegation as fanciful and as having no reasonable prospect of success. Its additional observation about amendment under Selkent did not undermine that conclusion.

5. An order refusing strike out was substituted for the discrimination claims. The case was remitted to the Employment Tribunal for further case management.

• Employment Appeal Tribunal: allowed the appeal against the strike-out of the race and religious discrimination claims, dismissed the appeal concerning protected-disclosure detriment, and remitted the surviving claims for case management: [2022] EAT 83 .

• Employment Tribunal: at a preliminary hearing for case management on 18 September 2020, struck out all claims as having no reasonable prospect of success.