REUTERS | Arnd Wiegmann

No prospects? Strike out in discrimination and whistleblowing cases

Respondents are often perturbed, and claimants buoyed, by the tribunal’s seeming reluctance to strike out discrimination and whistleblowing cases, based on the decisions of appellate courts in Anyanwu v South Bank University [2001] ICR 391 HL (discrimination) and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, CA (whistleblowing). But is this really the case in practice?

In Anyanwu, Lord Hope said that “discrimination issues…should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive.” What is sometimes overlooked is what Lord Hope went on to say: “Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail.”

It should be remembered that Anyanwu was struck out on a point of law, ultimately turning on a construction of section 33(1) of the Race Relations Act 1976 which the House of Lords disavowed. There is no injunction against tribunals striking out claims per se; it turns on the cogency of the case before it.

In Ezsias, the claimant’s claim of whistleblowing was struck out at first instance on the facts, the tribunal finding that on the available documentary evidence it had “no doubt that [the claim] is bound to fail in that any reasonable tribunal will find that public interest disclosure was not the principal reason for dismissal.” The Court of Appeal restored the claim, holding that “it would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute.”

None of this is to say that a tribunal is precluded from striking out whistleblowing or discrimination claims, either on the law or the facts. Indeed, anecdotal evidence suggests an increased willingness by tribunals to strike out or make deposit orders in cases (or on individual allegations) with poor prospects. This is particularly so, in my experience, since the 2013 rules came into force, based as they were on the Underhill Review’s stated purpose of strengthening tribunals’ early case management powers. Tribunals remain willing to take an early view of the parties’ pleaded cases.

Strike Out

The tribunal’s power to strike out a weak claim is contained in rule 37(1)(a) of the 2013 Rules of Procedure. A tribunal may strike out a claim (or part of a claim) at any stage of proceedings on the basis that it is “scandalous or vexatious or has no reasonable prospect of success”.

Subject to the caveats above, a tribunal may strike out claims on the basis that a case is doomed to fail on the facts or the law. There are, as Lady Smith observed in Balls v Downham Market High School [2011] IRLR 217, “cases where fairness between parties in the proper regulation of access to employment tribunals justified the use of this important weapon in an employment judge’s available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached.” 

There are broadly three categories of cases amenable to strike out:

  • Where a party has no factual basis for asserting that a legal prerequisite for a claim can be established. For example, in the recent case of Sivanandan v Independent Police Complaints Commission and another UKEAT/0436/14, Simler J upheld the striking out of an indirect discrimination claim (whilst overturning the striking out of other such allegations) on the basis that the claimant had no prospect of establishing that a practice placed people with the alleged protected characteristic at any disadvantage. In other words, even on the claimant’s case at its highest there was no prospect of establishing discrimination.
  • Where there is no reasonable prospect of establishing the factual basis for an allegation. This third category is more controversial and difficult to succeed on. However, where the factual basis to prove the case is “totally and inexplicably inconsistent with the undisputed contemporaneous documentation” (Ezsias), a case should be struck out.

Whilst the first category of case is unlikely to warrant an application in the alternative for a deposit order, in my view, the second and third categories almost always warrant an application being made under both rules. Unless it is clear than a claim is not amenable to strike out or turns on a short but decisive point of law, it is always worth making applications for strike out or a deposit in the alternative.

Next week, in the second part of this series, I will look at deposit orders in more detail, as well as providing practical guidance on making applications for strike out and/or deposit orders.

Devereux Jesse Crozier

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