D Carryl v Governing Body of Manford Primary School
[2023] EAT 167
S Sually v HMRC
11 May 2023
[2023] EAT 83
Employment Appeal Tribunal
Ms Sually sued her former employer, HMRC, for discrimination. A judge threw out some of her claims and demanded she pay money upfront to continue. A higher court decided the judge didn't properly look at all the evidence or Ms Sually's finances before doing this, so they reversed the decision. The case will now go to a full hearing.
Key Facts
- •Ms Sually, employed by HMRC from 2000 to 2017, claimed victimisation, direct discrimination, harassment, and failure to make reasonable adjustments.
- •Her initial claim form was excessively long (200+ pages).
- •The case underwent extensive case management by multiple Employment Judges.
- •Employment Judge Balogun struck out some complaints and imposed a deposit order.
- •Ms Sually appealed the decision to the EAT.
Legal Principles
Claims can be struck out if scandalous, vexatious, or without reasonable prospects of success (ET Rules 2013, rule 37).
Employment Tribunal Rules 2013, rule 37
In discrimination cases, strike-out should be used sparingly and only in the clearest cases. Factual disputes generally preclude strike-out. The claimant's case should be taken at its highest.
Anya v University of Oxford, Anyanwu v South Bank Student Union, Ezsias v North Glamorgan NHS Trust, Cox v Adecco
Deposit orders are appropriate for allegations with little reasonable prospect of success, but not generally for cases with extensive factual disputes. The claimant's means must be considered.
ET Rules 2013, rule 39; Hemdan v Ishmail
Post-employment discrimination is prohibited if arising from and closely connected to the employment relationship, and would have contravened the Equality Act 2010 during employment.
Equality Act 2010, section 108
Outcomes
Appeal upheld in part.
The Employment Judge erred in striking out certain claims of direct discrimination and harassment and in imposing a deposit order. Insufficient consideration was given to the entirety of the pleaded case and the claimant's resources.
Ground 4 (regarding limitation of a reasonable adjustments claim) not determined due to respondent's concession.
Respondent conceded that the Employment Judge's view on the one-off act was provisional and wouldn't prevent the claimant from fully arguing the point at the full hearing.