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30-05-2013

Can a claim for discrimination be struck out by a tribunal before all the evidence is heard? Yes it can.

In Patel v Lloyds Pharmacy Ltd, P worked as a locum pharmacist. He suffered from bipolar disorder. The area manager was aware of his disability.

In 2011, P applied for a permanent role. The area manager sent an email to one of the managers dealing with recruitment in which he expressed concern about P's performance, but he did not raise the issue of his disability.

An interview was arranged. P had indicated his disability on the application form, but this information was not seen by anyone directly involved in the recruitment process. P did not score highly at the interview. Following this, there were various emails between the area manager and one of the interviewers. None of these emails mentioned P's disability.

P was not selected for the position and brought proceedings claiming the decision to reject him was direct disability discrimination.

The employment tribunal struck out his claim on the basis there was no evidence that those who interviewed him had any knowledge of his disability. For that reason, it was decided that his claim had no reasonable prospect of success.

The Employment Appeal Tribunal agreed that P's claim should be struck out as it was not possible to infer that the interviewers knew that P suffered from bipolar disorder, or that the area manager believed he was unsuitable for the job because of his bipolar disorder. It was not right to allow a case to proceed simply on the basis that hopefully something might turn up that would assist the claim.

Tribunals are reluctant to strike out weak discrimination claims as it is rare to find direct evidence of discrimination. Cases usually rely on inferences. When the reforms to the employment tribunal system are introduced later this year, tribunals will have the power to strike out claims (and defences) at any time. The government has recently abolished the discrimination questionnaire procedure. Often discrimination cases are won or lost on the inferences drawn from the answers provided to questionnaires. It will be interesting to see if these two changes lead to more claims being struck out.

Sarah Rushton

Sarah Rushton is an employment partner at Moon Beever.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information. 

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