P Louis v Network Homes Limited

A tribunal must not effectively strike out a clearly pleaded discrimination claim at a preliminary hearing by relabelling its factual basis without giving the party, particularly a litigant in person, sufficient notice and a reasonable opportunity to address the issue. That procedural error will not justify allowing an appeal where a properly conducted process could only have produced the same result.

For Equality Act 2010 section 19 purposes, the alleged PCP must create a particular disadvantage for persons sharing the protected characteristic. The absence of access to a positive-action advantage is not itself a disadvantage. A claim fails where the relevant PCP affects all persons in the comparison pool alike, or applies only to persons with the protected characteristic.

The claimant, a fixed-term employee, pleaded indirect race discrimination. He alleged that the respondent did not apply its redundancy procedure to fixed-term employees. He said this denied him access to positive-action measures, including the Rooney Rule, available to BAME candidates for senior roles.

At a preliminary hearing, the Employment Tribunal held that the pleaded facts raised discrimination based on fixed-term status, rather than race, and recorded that no race-discrimination claim was presented. The claimant appealed. The central issues were whether that conclusion amounted to an impermissible strike-out without notice, and whether the pleaded facts could in any event disclose indirect race discrimination under section 19.

1. Appeal dismissed. The Employment Judge erred procedurally. The ET1 clearly pleaded race and indirect discrimination, identified a PCP and alleged a disadvantage. By analysing the facts under a different jurisdictional label and deciding that no indirect-race-discrimination claim existed, the Tribunal effectively struck out a pleaded claim.

2. A litigant in person should not be required, without warning, to meet a complex legal point at a hearing. Rules 27 and 37 of the Employment Tribunal Rules 2013 require notice and an opportunity to make representations before a claim is dismissed or struck out for having no reasonable prospects of success. Conversion of a preliminary hearing to a final hearing also required clear reasons and absence of material prejudice.

3. The procedural error made no practical difference. On the claimant’s primary PCP, the non-application of redundancy procedures to fixed-term employees, all fixed-term employees would be excluded from the subsequent process. BAME employees and employees without that characteristic would therefore be affected alike. If the pool were confined to BAME employees, all members of it would be affected.

4. Further, adopting the approach in Cowie, the court held that not receiving a positive-action advantage was not a detriment or disadvantage. The Rooney Rule and associated measures conferred an advantage on a defined group meeting stated criteria; their non-availability could not be converted into a statutory disadvantage. The alternative PCP, non-application of those measures to fixed-term employees, could only apply to BAME persons and could not satisfy section 19.

5. Whichever PCP was used, the section 19 claim was incapable of succeeding. Following the correct procedure, the claim would inevitably have been struck out. A remittal would therefore require a redundant step, and the appeal was dismissed.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal’s procedural approach to the pleaded indirect-race-discrimination claim was erroneous, but the error was immaterial because the claim had no viable basis under section 19 of the Equality Act 2010.
• Employment Tribunal: at a preliminary hearing on 22 May 2022, the Employment Judge held that the claims, as clarified, did not include race discrimination and treated the relevant facts as raising fixed-term-employee status discrimination.