Employers should succeed in striking out a claim where, putting the claimant’s case at its best, there is still no evidence of an essential part of the claim. The claimant’s hope that “something may turn up” later in the claim will usually be insufficient to avoid strike-out.
The EAT upheld the strike out of a disability discrimination claim where there was no evidence that the managers making the relevant recruitment decision knew of the claimant’s disability. The hope that the managers might admit to knowledge under skilled cross-examination was not sufficient to allow the claim to proceed. Presumably a claimant would have to show that the chance of something probative turning up on cross-examination – or perhaps in disclosure – was realistic. (Patel v Lloyds Pharmacy)