When can a discrimination claim be struck out?

March 26th, 2021

The Employment Appeal Tribunal (EAT) recently held in Mallon v Aecom Limited that only in the plainest of cases can a discrimination claim be struck out for not having reasonable prospects of success.  Further it held that the Employment Tribunal should have considered whether auxiliary aids could have been a reasonable adjustment for this Claimant.

In this case, Mr Mallon suffered from dyspraxia, which is also known as Developmental Coordination Disorder and affects fine and/or gross motor coordination in children and adults.  Mr Mallon asked for a reasonable adjustment that he be allowed to make a job application orally, rather than online, because otherwise he would be placed at a substantial disadvantage to other applicants. 

At the ET his claim was struck out because the Tribunal held that his claim had no reasonable prospects of success – that he could not in fact show that he had been substantially disadvantaged compared to non-disabled people. 

The EAT held that the ET had erred in law in striking out the claim because it should have considered the possibility that the case was about physical features such as furniture or auxiliary aids which included services.  It said that strike out was a draconian measure and that the decision to strike out must only be used “in the most obvious and plain cases” and rarely with discrimination.  Further, the EAT held that difficulty in filling in an application form could be considered more than a minor or trivial disadvantage, and a substantial disadvantage if the time allowed to make the application would take the Claimant significantly more time than a non-disabled person.  Similarly the fact that the Clamant could seek assistance in completing the online application form did not mean that he was not put at a substantial disadvantage, because most people would not want to rely on their friends or family to assist them.  The ET should have considered if this was an auxiliary aid case where the Claimant would need this as assistance for completing the online application. The ET will often give this kind of assistance in a case where the Claimant is a litigant in person rather than a qualified lawyer.  The judge did not do that in this case and therefore the EAT remitted the case back to the ET for a fresh hearing.

The EAT also indicated that it would have perhaps been better for the Respondent to have applied for a deposit order, where the test is whether the claim has little prospects of success and is less likely to lead to “an impermissible mini-trial in which the tribunal is tempted into making findings of fact on a summary assessment of a limited part of the evidence.” 

The conclusion: it is incredibly difficult to strike out a discrimination claim without hearing the full merits first meaning that claimants will at least get their day in court.  That said, the EAT did tell Mr Mallon that just because the case had been remitted, that he would not necessarily succeed in his claims. 

We always recommend that you take legal advice early to assess whether you have a discrimination claim. At didlaw we pride ourselves on offering pragmatic advice in a clear and straightforward manner, so that you know exactly where you stand.

This blog was written by Anita Vadgama, Legal Director  at didlaw

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