HHJ Kalyany Kaul KC v Ministry of Justice & Ors.

An employment tribunal may strike out a claim under Rule 37(1)(a) where it has no reasonable prospect of success on a critical factual issue as well as on a legal issue. The power requires particular caution in discrimination claims, but caution does not prevent a realistic assessment of undisputed and ordinary events.

A claimant must identify some basis for saying that an apparently innocent sequence of events was motivated by a protected act or was other than it appeared. Taking a case at its highest does not require speculation about an unpleaded case theory. Detriment is assessed objectively by reference to the reasonable worker. A formulaic assertion that routine grievance-process steps caused detriment, disadvantage or harassment will not suffice.

The appellant, a Circuit Judge, brought Equality Act claims under section 50 concerning the handling of two grievances. Her claims concerned delays, requests for schedules and representations about whether grievances were late, and wording in a letter rejecting an appeal against a decision not to investigate a staff grievance on its merits.

An Employment Judge struck out, under Rule 37(1)(a), claims of victimisation, indirect discrimination, failure to make reasonable adjustments, discrimination arising from disability and harassment. The Judge did not strike out claims based on the substantive decision not to determine the staff grievance on its merits.

The appeal concerned whether the struck-out claims had no reasonable prospect of success and whether factual assessments should instead have awaited disclosure and a final hearing.

1. Appeal dismissed. The Employment Judge was entitled to strike out the identified claims as having no reasonable prospect of success.

2. Rule 37(1)(a) is not confined to claims which fail as a matter of law. It permits strike-out where a critical factual issue has no reasonable prospect of being established. The hurdle is high, especially in discrimination cases, because a summary process ordinarily precedes disclosure and a full evidential hearing. Nevertheless, the required caution does not prohibit a realistic assessment where the material facts are undisputed and the claimant identifies no evidential basis for a contrary inference.

3. Detriment in a victimisation claim is assessed objectively. The question is whether a reasonable worker would or might regard the treatment as detrimental. The use of “might” sets the threshold; it does not make the standard subjective. Taking a claimant’s case at its highest means considering the pleaded facts and inferences, not constructing an unpleaded allegation of unlawful motivation.

4. The modest periods taken to progress the staff grievance were ordinary and did not arguably amount to detriment, disadvantage or substantial disadvantage. Nor was there any pleaded material from which victimisation could realistically be inferred. The Judge was also entitled to conclude that there was no realistic basis for a general practice of delaying grievances, and that any modest delay would be proportionate to the legitimate aim of a fair, effective and efficient investigation.

5. The request for a schedule and the request for representations on lateness were routine steps intended to clarify and determine grievances. On the pleaded case, they did not arguably cause actionable detriment or disadvantage, were not shown to have been caused by protected acts, and did not establish the alleged practices. Any such requirements would in any event have been justified or reasonable in the grievance process.

6. The harassment claim was also properly struck out. A measured and courteous statement that the writer was not in a position to accept, on the information provided, that the claimant was disabled could not arguably have the statutory purpose or effect required by section 26. The statutory language requires conduct of real gravity and should not be cheapened.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Judge’s partial strike-out under Rule 37(1)(a).
• Employment Tribunal: struck out the claims concerning delay, the schedule request, the request for representations on lateness, and harassment; it did not strike out claims concerning the decision not to determine the staff grievance on its merits.