Kostrova v McDermott International Inc & Anor

A discrimination claim should be struck out for having no reasonable prospect of success only in clear cases. A tribunal must first identify the case actually pleaded, with particular care where the claimant is unrepresented and does not speak English as a first language. It must then determine whether material facts are genuinely disputed.

Where the pleaded case puts in issue the true reason for dismissal or the explanation for a pay differential, the tribunal must take the claimant’s case at its highest. It must not resolve those disputes through an informal assessment that the respondent’s documentary evidence is more likely to be accepted. Doing so is an impermissible mini-trial and is an error of law.

The appellant, an agency worker, brought complaints of sex and age discrimination after her assignment ended in October 2020. She alleged that her dismissal was affected by sex and age, and that she was paid less than a younger male worker. Her complaint under the sex equality clause was recorded as withdrawn.

Employment Tribunal: On 3 September 2021, Employment Judge Burns struck out the remaining discrimination complaints under rule 37, finding that they had no reasonable prospect of success.

Employment Appeal Tribunal: The appellant appealed. The central issue was whether the tribunal had been entitled to strike out the discrimination claims without a factual hearing, given the contents of her ET1 and the disputes over the reasons for dismissal and pay.

1. Appeal allowed in part. The apparent-bias ground failed. The appellant had not established with sufficient precision what the Employment Judge had said or the context in which anything was said. The fair-minded and informed observer test could not be applied on impressions and imprecise assertions alone.

2. The strike-out appeal succeeded. In discrimination claims, strike out is generally inappropriate where material facts are disputed. The limited exceptions include cases in which the central facts are wholly undisputed, the pleaded averments are demonstrably untrue, or the claim is legally irrelevant.

3. The tribunal had not accurately identified the appellant’s pleaded case. Read fairly, and with due allowance for her status as a litigant in person whose first language was not English, the ET1 advanced claims that dismissal was at least partly because of sex and/or age, and that the pay differential with a younger comparator was because of age.

4. The true reason for dismissal and the validity of the explanation for the pay differential were material disputes of fact. Taking the ET1 at its highest, there was sufficient material for prima facie cases of sex and age discrimination. The tribunal instead made an informal credibility assessment that the respondents’ evidence would probably be preferred. That was inconsistent with the strike-out exercise and amounted to an impermissible determination on the papers.

5. Paragraph 3 of the Employment Tribunal’s judgment was set aside. The remaining discrimination complaints were remitted to a differently constituted tribunal for determination on their merits. No appeal having been brought against the withdrawal of the sex-equality claim, section 70 of the Equality Act 2010 prevented a subsequent sex-based equal-pay claim concerning the differential with NV.

• Employment Appeal Tribunal: Allowed the appeal against the strike-out of the remaining discrimination complaints, set aside the relevant part of the tribunal’s judgment, and remitted those claims to a differently constituted tribunal. The bias ground was dismissed.
• Employment Tribunal, London Central: On 3 September 2021, struck out the sex and age discrimination complaints under rule 37 as having no reasonable prospect of success. It recorded the section 66 sex-equality complaint as dismissed on withdrawal.