Defending an allegation of discrimination, whether in a court or tribunal, can be a costly and time consuming affair. Not only that, but accusations of discrimination can attract unwanted media attention. It is unsurprising, therefore, that parties faced with claims that appear spurious will look to the court or tribunal to strike out the claim at the earliest opportunity on the grounds that it has no reasonable prospect of success.   However, there is a long established general principle that discrimination cases will not be struck out on this ground except in the very clearest of cases.  How this principle operates in practice can be seen from a flurry of recent cases dealing with strike-out applications.

One of the reasons why courts are reluctant to strike out discrimination claims is that such cases are often fact-sensitive, meaning the strength of the claimant's allegations can only be assessed after hearing all the evidence.  It was this concern that led the Employment Appeal Tribunal (EAT) in the case of Timbo v Greenwich Council for Racial Equality [2012] EqLR 1010 to rule that the Employment Tribunal had been wrong to strike out the claimant's complaints of race and sex discrimination part way through the final hearing because of doubts about the credibility of her evidence. The EAT said that 'whilst it is fine for the Tribunal to reach at the half time stage, a provisional view that a witness's evidence is unsatisfactory and that it is unlikely to be accepted if there is evidence to the contrary, it is another thing altogether to reach a concluded view that a witness's evidence must inevitably be rejected in its entirety even if there is no evidence to contradict it.' As the EAT said, where there is a crucial core of disputed factual matters a Tribunal should hear all the evidence to see whether there is any underlying truth in the allegations and decide the case on its merits in order to minimise the risk of injustice.

The case of Community Law Clinic Solicitors v Methuen [2012] EqLR 880 demonstrates that this same reluctance to strike-out a claim applies where there is a legal point in issue that requires the consideration of evidence. The case concerned a claim of age discrimination by a 54 year old solicitor who was dismissed after six months' employment and replaced by a younger, less experienced solicitor at a lower salary. The respondent solicitors said they dismissed the claimant, not because of age, but because he failed to generate sufficient business and because he was more highly qualified, and therefore more expensive, than his replacement. The claimant, on the other hand, argued that there was an intrinsic link between post-qualification experience, cost and age.

Ruling that the Employment Tribunal judge had been right not to strike out the age claim, the Court of Appeal felt that the question of whether there was an intrinsic link between post-qualification experience, cost and age was an important legal point that necessitated a fuller consideration of the evidence and adequate findings of fact as to the basis of the Claimant's dismissal, something that could only be done with a full hearing.  Therefore the case was allowed to proceed to a full hearing even though reservations about the claimant's chances of success were shared by the six judges that considered the matter (the original Employment Tribunal judge, the judge who heard the first appeal in the EAT, the Court of Appeal judge who allowed the case to be appealed further, and the three Court of Appeal judges who took the final decision that the case should not be struck-out).

Strike-out applications do still have their place, however, and, as the following two cases demonstrate, are not always destined to fail.

Conway v Community Options Ltd [2012] EqLR 871 concerned an allegation of a failure to make reasonable adjustments under the disability provisions of the Equality Act 2010. Crucially, there was no dispute between the parties as to the facts of the case: the claimant was dismissed by his employer on ill-health capability grounds, following a 15 month absence, having consulted with the claimant about his condition and prognosis (he was pessimistic about a return to work), and having obtained clear and undisputed medical evidence that it was inadvisable for him to return to his former role, he was not fit to return to work in any other role and a phased return to work was inappropriate.

An Employment Judge struck out the claim that the respondent had failed to make reasonable adjustments to enable the claimant to return to work, there being no reasonable prospect of the claim succeeding. The EAT upheld that decision on appeal, ruling that this was one of the rare cases where strike out was appropriate.

The final appeal looking at strike out issues was that of Chief Constable of Hampshire Constabulary v Bullale [2012] EqLR 875. This was a service provision case rather than an employment case but still involved alleged discrimination.  In this case it was alleged that the police and ambulance service had discriminated against Mr Bullale, who was of Somalian origin, because of race in the way they responded to his 999 calls following an assault on him on a night out. On the night in question Mr Bullale had complained that there were delays in responding to his calls because he was black. Although the police and ambulance service did attend to him he was not taken to hospital. Later that night he died after collapsing on a road and being run over. The claims of race discrimination were brought posthumously by his estate, who argued, amongst other things, that he was not given appropriate medical attention and this was because he was black.

The defendants in the case applied to have the case struck out. Initially a county court judge refused their applications but that decision was overturned by the High Court on appeal.  The key to the High Court's decision appears to have been that the claimant had not identified in what respect the deceased had been treated less favourably than others would have been in the same situation: the defendants contended that they had treated the deceased in the same way as they would have treated an individual of any race, colour, nationality or ethnic origin in the same or similar circumstances. As a result, the High Court concluded that there was no evidence that the defendants' treatment of the deceased had been less favourable than would have been afforded to others.

Although, the High Court judge seems to have taken a harder line on the claimant than is often seen in employment cases, this could well be because, as Mr Bullale had tragically died, the evidence available to the tribunal of what happened on the night in question would inevitably be very limited, particularly as there appear to have been no independent witnesses to what happened. That being the case, it would be difficult for the claimant to make out a case of race discrimination at a full hearing.  The general principle remains, however, that in cases of discrimination where there is a dispute over what happened, cases will generally not be struck out without a full hearing.