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Strike Out

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Did the tribunal err when striking out the Claimant's claims on the ground they had no reasonable prospects of success?

No, held the EAT in Kaul v Ministry of Justice and ors.

The Claimant appealed against a tribunal's decision to strike out her claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment, and discrimination arising from disability, on the ground that the claims had no reasonable prospects of success.

The Claimant submitted that on a proper application of Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Employment Judge’s conclusion that the complaints struck out had no reasonable prospects of success was premature and not a conclusion properly open to him. Relying on authorities that support the position that decisions that a claim has no reasonable prospects of success on its facts should be rare, the Claimant argued that the decision was premature and should have been determined at a final hearing.

The EAT disagreed and found the decision of the tribunal was consistent with the authorities. The need for caution when considering a strike-out application does not prohibit a realistic assessment where the circumstances of the case permit. This case involved ordinary, undisputed events regarding the handling of the Claimant’s grievances. Taking those facts at face value, the decision that the claims would inevitably fail and had no reasonable prospects of success was permissible.

Thanks to Kate Lea of didlaw for preparing this case summary.