M Humed v Sight and Sound Security

Before striking out a poorly pleaded claim by a litigant in person, an Employment Tribunal must make a reasonable and careful examination of the claim form, supporting documents and core material. It must identify the true claims and issues before deciding whether they have no reasonable prospects of success. Difficulty in obtaining a clear oral explanation at a hearing does not remove that duty.

Where the documents disclose that dismissal is the final alleged detriment in a continuing course following protected acts, the time limit must be assessed by reference to that properly identified claim. A claim brought in time on that basis should not be struck out.

The claimant, a litigant in person whose first language was not English, appealed against an Employment Tribunal decision striking out all his claims. The appeal concerned only his claim under the Equality Act 2010.

The Tribunal treated the claim as confined to alleged racist remarks in September 2017 and a failure to act on the resulting complaint. It held that those matters were out of time. The claimant contended that his documents instead alleged that his December 2018 dismissal was the final detriment in a series arising from protected acts in September 2017.

The central issue was whether the Tribunal had correctly identified the nature and time basis of the Equality Act victimisation claim before striking it out.

1. Appeal allowed. The Employment Tribunal materially misconstrued the nature and scope of the Equality Act claim. It treated the claim as one based solely on discrete events in September 2017, whereas a careful reading of the claim form and supporting documents showed an allegation that dismissal was the final detriment in a series following protected acts made in 2017.

2. In a strike-out application involving a litigant in person, the Tribunal must take reasonable care to identify the claim from the pleadings, additional information and key supporting documents. It should not rely only on the claimant's ability to explain the case orally under the pressure of a hearing. Identification of the claims and issues is a pre-condition to deciding whether a claim has reasonable prospects of success.

3. The claimant's prolix and unfocused drafting, and the pressure of a busy list, made the error understandable but did not excuse it. Earlier attempts to obtain clarification had complicated the position. The Tribunal nevertheless had to examine the material sufficiently to identify the alleged protected acts and detriments.

4. Applying Jafri and Lincoln College [2014] EWA Civ 449, there was only one conclusion open to a correctly directed Tribunal: the properly analysed victimisation claim was brought in time and should not have been struck out. The EAT did not express a view on the merits, including the investigation, dismissal decision or possible transferred malice.

5. All other heads of claim had been validly struck out. The claimant was cautioned that only the narrow victimisation claim could proceed, and that further documents should clearly identify the protected acts and alleged detriments.

• Employment Appeal Tribunal: allowed the appeal from the strike-out of the Equality Act victimisation claim: [2023] EAT 53.
• Employment Tribunal: Employment Judge Balogun struck out all claims after a hearing on 31 July 2020. The EAT held that the Equality Act victimisation claim should not have been struck out; the remaining strike-outs stood.