In Miss Wangtian Xie v E’quipe Japan Ltd, the Employment Appeal Tribunal (EAT) has again looked at the question of when it may be reasonable for an Employment Tribunal (ET) to strike out a discrimination claim made by a litigant in person because it has no reasonable prospects of success. The answer is – in very limited circumstances!
Miss Xie, who described herself as Chinese, worked as a Beauty Consultant on E’quipe’s counter in Harrods, under a zero-hours contract.
E’quipe received a letter of concern from Harrods about a complaint made by customers who alleged that Miss Xie had provided poor service and shown them a lack of respect, following which Miss Xie was dismissed.
Miss Xie considered she had been treated less favourably because of her Chinese nationality and that this was discriminatory. She also alleged there was an “anti-Chinese culture” in which people of Chinese original were treated less favourably than those of Arab origin, such as the customers who had complained about her.
The Employment Tribunal struck out Miss Xie’s claim because in its view it had no reasonable prospects of success.
However, the EAT disagreed with the ET’s reasoning and summarised the relevant guidance, including:
“4.1. Rule 37 of the Employment Tribunal Rules 2013 provides a discretion to strike out a claim if it has no reasonable prospect of success.
4.2. Strike out is a draconian step to be taken only in clear-cut cases.
4.3. There is a public interest in discrimination cases being heard on the merits.
4.4. Care should be taken when an application for strike out is made against a litigant in person.
4.5. That said, there is not an absolute prohibition on strike out in discrimination cases, particularly if the claim is contrary to undisputed documentary evidence.
4.6. Where there is a core of disputed fact strike out is generally inappropriate.
4.7. When assessing strike out the case of the party against whom the application is made should generally be taken at its highest”.
Miss Xie’s claim is to return to the ET to be continued. The EAT noted the factual allegations in the claim are straightforward and hoped the claim could be decided following a fuller investigation of its merits.
This blog was written by Ben Lindsay, Solicitor at didlaw.
