Patel v Lloyds Pharmacy Ltd UKEAT/0418/12/ZT
Subjects: Direct Discrimination – Striking-out/dismissal – Discrimination in Recruitment
C's discrimination claim was struck out for having no reasonable prospect of success. C appealed.
C had disclosed in an interview with Mr Butt, an employee of R, that he had bipolar disorder. Following the interview he worked for R for a short period of time. At a later date, after this initial employment had finished, C applied for another job with R and initially contacted Mr Butt. Mr Butt decided not to interview C but that decision was overridden and C was offered an interview. Mr Butt emailed a member of the interview panel setting out his reasons for not offering C an interview. These were that he was dissatisfied with C's previous work. Mr Butt did not mention C's disability. Although C had referred to his disability on an equal opportunities monitoring form there was no evidence that this information had been was passed on to the interview panel. After the interview C was not offered employment. C brought a claim contending that the reason was discrimination against him on the grounds of his bipolar disorder. The ET held that there was no evidence to indicate that the interviewers knew C had bipolar disorder and therefore that C's claim should be struck out.
The EAT acknowledged that striking out a discrimination claim was a draconian and exceptional step (following Anyanwu v South Bank Students Union and South Bank University  UKHL 14 and Ezsias v North Glamorgan NHS Trust  EWCA Civ 330). However this did not mean that a tribunal should refrain from striking out a hopeless case merely because there were unresolved factual issues. The correct approach was to take C's case at its highest and then decide if it could succeed. If a case has no reasonable prospect of succeeding it was not right to allow it to proceed on the basis that “something may turn up”.
Many claimants do not consider fully the consequences of their pleaded cases, there may be no evidence that the respondent knew of the disability or that there was an adjustment that could be made. This case is a reminder that, at the outset of the case, there must be something which, taken at its highest, would form the basis of a claim with a reasonable prospect of succeeding. Without some such a basis the claim should be struck out.