EAT guidance on strike out and disputed facts: Kaul v Ministry of Justice and ors

The Claimant appealed against a decision under Rule 37(1)(a) of the Employment Tribunal Rules, striking out claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment, and discrimination arising from disability, on the ground that the claims had no reasonable prospect of success. The struck-out claims arose from the way in which grievances had been addressed (but did not concern the substantive outcome of the grievances).

The Claimant took issue with various aspects of the grievance process, the struck-out claims pertained to a delay in responding to grievances, requesting a schedule of complaints, informing the Claimant her grievances may be out of time and asking her to set out why they were not, and refusing to accept that the Claimant was disabled. The pleaded case did not particularise why or how these acts were said to amount to the various forms of pleaded discrimination.

The EAT considered whether the strike out was consistent with Ezsias v North Glamorgan NHS Trust, that a claim should not be struck out where there were facts in dispute between the parties which might affect the decision.

The EAT held that the Employment Judge had been entitled, as a matter of assessment, to reach the conclusions he had. The need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit. As per the ruling of the CoA in Ahir v British Airways [2017], it is open for a tribunal to strike out a claim, even if there are material disputed facts, where there is on the face of it a straightforward and well-documented innocent explanation, and the Claimant’s case proceeds on the basis of a mere assertion that that explanation was not the true explanation, without the Claimant being able to advance some basis for that being so. In this case, the claims rested on undisputed events. The matters complained of were apparently ordinary events that might occur in the course of any grievance process. No part of the Claimant’s case explained why those events should not be taken at face value. In these circumstances, the decision that the claims had no reasonable prospect of success was one reasonably open to the Employment Judge.

The case is essential reading for those making strike out applications for Respondents based on claims having no reasonable prospects of success. Tribunals are, understandably, reluctant to strike out claims, particularly discrimination claims. The EAT noted that the rarity of strike outs for want of reasonable prospects of success “is the clear tenor of the authorities, all of which identify the caution Tribunals must apply when dealing with Rule 37(1)(a) applications.” What is clear though is that “that submission on its own, is not sufficient”, and each case must be determined on its merits. The case will be useful for respondents making applications is such cases, where it is not infrequent to be met by outright refusal to consider strike out. 

Equally, the case should serve as a salutary remined to those pleading claims that to simply set out a factual background, followed by an allegation of discrimination is insufficient; there must be some explanation as to why events that may have an innocuous explanation, should not be taken at face value. Crucially, whilst when considering such an application a tribunal should take the Claimant’s case at its highest, “taking a case at its highest does not require a Tribunal to speculate on a case that a claimant might have advanced, but has not advanced.”