Employment Appeal Tribunal strikes out claims based solely on replacement employee’s sex and race as having no reasonable prospect of success.

In this case the Employment Appeal Tribunal (“EAT”) held that a Claimant bringing a discrimination claim cannot establish an inference of discrimination (so as to pass the burden of proof to the Respondent) simply by showing that he was dismissed and replaced by someone with protected characteristics that are different to his own.

The Employment Tribunal (“ET”) had declined to strike out the Claimant’s claims of sex and race discrimination. It instead made an order requiring the Claimant to pay a deposit in order to proceed with his case, on the basis that the claims had “little”, rather than “no reasonable”, prospect of success.

On appeal, the EAT disagreed with the ET’s finding. It noted that “it cannot be the law that where an employee is dismissed for whatever reason...and is replaced by someone whose protected characteristics are not exactly the same, the claimant can get a discrimination case to trial simply by asserting that the replacement employee is different...On that basis no discrimination claim could ever be struck out”.

Implications

Tribunals have generally been reluctant to strike out discrimination claims prior to a full hearing on the basis of no reasonable prospects. This is the case not least because of the Claimant-friendly approach taken by the House of Lords in the leading case on the issue, Anyanwu. This case will no doubt be a reference point for employer’s advocates seeking to persuade a Tribunal to strike out an apparently spurious discrimination claim.  

It should be noted however, that the claimant in this case was not left without remedy by the decision to strike out his sex and race claims. Both the ET and EAT allowed him to pursue his age discrimination claim, albeit subject to payment of a deposit order. We can only speculate as to whether the EAT’s approach would have been different, had the decision to strike out left the Claimant without any potential remedy.

Background

The Claimant, Mr Methuen, commenced work with the Respondent firm of solicitors in January 2009. He was head of the firm’s Family Law department. The Respondent held meetings with Mr Methuen during 2009 to discuss concerns it had regarding his billing performance. This was followed by a notice to terminate his employment, such notice expiring on 2 September 2009. Mr Methuen therefore did not have the necessary length of service to bring a claim of unfair dismissal.  

In August 2009, Sharlene Campbell commenced work at the firm. She was, at least in part, a replacement for Mr Methuen. Ms Campbell was Afro-Caribbean and far younger than Mr Methuen.