Morgan v DHL Services Ltd

It is a misconception that a claimant must orally explain an alleged "link" to a protected characteristic before a tribunal may consider a strike-out application.

Instead, the tribunal must take the pleaded case at its highest and proactively consider whether pleaded facts, singly or cumulatively, might constitute the "something more" required to shift the burden of proof under the Equality Act.

Strike out is appropriate only in the clearest cases where pleaded facts are plainly incapable of supporting an inference of discrimination or are conclusively refuted by contemporaneous material.

The claimant alleged direct race discrimination and race-related harassment arising from two workplace incidents and ensuing disciplinary and grievance processes. An Employment Tribunal ( Employment Judge M Warren) struck out the claims at a preliminary hearing on 11 February 2019 as having no reasonable prospect of success.

The claimant appealed to the Employment Appeal Tribunal. The EAT examined whether the tribunal had properly taken the pleaded case at its highest and whether it had given sufficient, reasoned consideration to features of the pleaded case that might, individually or together, permit an inference of race discrimination or shift the statutory burden of proof.

The central question was whether the strike-out judge had adequately engaged with pleaded material that might amount to the required "something more" under the applicable authorities and statutory scheme.

1. The appeal is allowed. The Employment Tribunal's decision striking out the claimant's claims is quashed and the matter is remitted to a different Employment Tribunal for rehearing. (Disposition: appeal allowed; remitted.)
2. Legal standard on strike out: the tribunal must take the claimant's pleaded case at its highest. Strike out is only appropriate in clear cases where the pleaded case has no reasonable prospect of success, for example where it is conclusively disproved by contemporaneous documents or is inherently implausible. (See discussion and authorities adopted by the EAT.)
3. When considering whether pleaded facts amount to the "something more" required to shift the burden of proof, the tribunal must proactively analyse pleaded building blocks. The tribunal must say why particular pleaded features do or do not, singly or cumulatively, permit an inference of discrimination or a shifting of the burden under the Equality Act 2010.
4. The judge at first instance had set out the claimant's account but failed to address with sufficient specificity a number of pleaded features that, if assumed true, might provide arguable support for an inference of race discrimination. The judge also relied on some respondent material without showing that such material incontrovertibly defeated the pleaded case.
5. Where the appellate tribunal cannot be confident there is only one right answer, it should remit rather than substitute its own decision. Remission should be to a different tribunal where necessary to preserve confidence in the process.
6. Practical outcome: the strike-out order is quashed and the case remitted to a different Employment Tribunal to consider afresh whether any parts of the pleaded claims should be struck out or subjected to a deposit order, taking proper account of the pleaded case at its highest and explaining reasons for any adverse conclusions.

• Employment Tribunal (first instance): Preliminary hearings and a strike-out decision delivered by Employment Judge M Warren on 11 February 2019, which struck out the claims as having no reasonable prospect of success (struck out at PH).
• Employment Appeal Tribunal: Appeal allowed; strike-out judgment quashed and matter remitted to a different Employment Tribunal for rehearing (this judgment) (see paras [54]–[59]).