S Sually v HMRC

An employment tribunal must identify the claims and issues in reasonable detail before deciding that they have no, or little, reasonable prospect of success. This is particularly important in discrimination claims and where the claimant is unrepresented. The tribunal must read the pleadings and key supporting documents fairly, rather than rely solely on the claimant’s oral explanation at a hearing.

Under the Employment Tribunal Rules 2013, strike-out is rarely appropriate where the central facts are disputed. A deposit order has a lower threshold, but requires adequate reasoning and a proportionate assessment of the paying party’s means. It must not operate as a barrier to access to justice.

The claimant appealed against a decision of Employment Judge Balogun, dated 6 February 2020 and sent to the parties on 10 February 2020. The Employment Tribunal struck out complaints of direct discrimination, harassment and victimisation for having no reasonable prospects of success. It also made a £300 deposit order in relation to one allegation and considered limitation for reasonable-adjustments complaints.

The claimant had been a litigant in person during extensive case management. Her pleaded case had been repeatedly clarified and shortened. The central issue was whether the Employment Judge had properly identified and assessed the pleaded claims before making the strike-out and deposit orders.

1. Appeal allowed. The Employment Judge erred in law by striking out the post-termination direct-discrimination and harassment allegations. Those allegations concerned the same manager and had to be assessed in the context of the pleaded sequence of allegedly discriminatory treatment which was otherwise allowed to proceed. The reasons did not show sufficient consideration of the particulars as a whole.
2. The Employment Judge also erred in making the deposit order. Although the threshold under rule 39 is lower than for strike-out, the allegation formed part of a pleaded sequence which required examination at a full hearing. The reasons did not adequately explain why the full particulars showed little reasonable prospect of success.
3. The £300 deposit order further failed properly to take account of the claimant’s resources. Her stated monthly disposable income was £254.65, she had no savings, and the sum was payable within 28 days. The reasons did not adequately address her living expenses or the fact that she received carer’s allowance because she cared for her mother.
4. The victimisation complaints were wrongly struck out. The Employment Judge relied on the claimant’s and her brother’s inability to identify protected acts orally, without properly considering the written particulars, which contained numerous potential protected acts.
5. The limitation issue concerning alleged failure to redeploy was not determined because the respondent accepted that the Employment Judge’s observations were not a binding finding. The issue could therefore be argued at the full hearing, or reconsidered if necessary.

The parties were directed in substance to continue cooperating under the overriding objective so that the claims, including the protected acts, could be identified and the matter proceed to a full hearing.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the Employment Tribunal’s strike-out of discrimination and victimisation complaints and its deposit order.
• Employment Tribunal: Employment Judge Balogun’s decision dated 6 February 2020 struck out specified complaints and imposed a deposit order.