In the recent case of Community Law Clinic Solicitors v Methuen the Employment Appeal Tribunal considered the test for whether a claim should be struck out at the pre-hearing review stage of Employment Tribunal proceedings as having no reasonable prospect of success. While the Employment Tribunals Rules of Procedure provide for hopeless cases to be struck out, and for near hopeless cases to be made the subject of costs warnings and deposit orders, Employment Tribunals are often reluctant to find at a preliminary stage in the proceedings that discrimination claims are so weak as to merit dismissal or warning as discrimination is rarely overt and uncovering acts of discrimination may involve testing live evidence at a full hearing. The Claimant, Mr Methuen, a 53 year old Asian solicitor, was employed by the Respondent as Head of Family Law in January 2009. He was subsequently dismissed in September 2009 for failing to generate new business and meet his billing targets. The Claimant was partially replaced with a younger, female Afro-Caribbean solicitor. Mr Methuen brought proceedings alleging age, race, and sex discrimination.

The Respondent applied at a pre-hearing review for the Claimant’s claims to be struck out on the grounds that they had no reasonable prospects of success. The Employment Judge hearing the application declined to strike out the claims, even though he had reservations about the Claimant’s prospects of success, as he could not say the claims were bound to fail as the case was fact sensitive and there was some prospect the Claimant “…being able to point to some relevant fact” could shift the burden of proof onto the Respondent.

However the Employment Judge went on to find that the claims had little prospect of success. He found that while the Claimant could point to a difference in age, race, sex and treatment with his comparator, that of itself was not sufficient for the claims to succeed – the Claimant had to be able to point to some fact from which discrimination could be inferred in order to shift the burden of proof to the Respondent. The Claimant had done little to point to any such fact and his case appeared weak.

The Respondent appealed the decision not to strike out the claims to the EAT. The appeal in part succeeded in that the race and sex discrimination claims were struck out.

The EAT held that it was common ground. The earlier House of Lords judgment in the case of Anyanwu does not impose an absolute bar on striking out discrimination claims but the power to strike out must be exercised with caution. The judgment noted that a distinction must be drawn between cases having little prospect of success and having no reasonable prospect of success. The judgment confirmed that when considering this question the relevant test is “whether the claim has or does not have any reasonable prospect of succeeding at trial.”

Considering the facts of this case, the EAT held that it was not enough for the Claimant to have simply said that unless he was replaced by a man of the same age and race there was a prima facie case of discrimination for his employer to rebut. The EAT noted that “on that basis no discrimination case could ever be struck out”. Having searched in vain for any evidence of more than an assertion of race and sex discrimination, the EAT struck out those claims as having no reasonable prospects of success.

In relation to the age discrimination claim, the EAT noted that the Claimant had been dismissed on the grounds of performance and replaced by somebody younger and less experienced, and that while the claim was close to the borderline, it could not be said to have no reasonable prospects of success. The age discrimination claim was therefore allowed to continue.