The claimant began working for the respondent in 2019.  His contract was terminated, with notice, in 2020.  He brought claims alleging that his manager behaved in a way to ‘frustrate’ his work and forced him to leave before making a reason up to have his contract terminated.  The claimant represented himself.   The claimant alleged that he had raised concerns through the whistleblowing team.   The issue arising relating to this appeal was the procedural aspects at the Employment Tribunal. 

A Preliminary Case Management Hearing was arranged to take place by telephone in September 2020.  The parties provided their agendas for the hearing with the respondent stating that legal basis was required for the claims.  They stated that depending on the clarification received that they may apply to have the claims struck out.  At the telephone hearing the Tribunal made the decision to strike out the claims.  They decided that the claimant identified particular characteristics (race and religion) but had not shown any evidence of a link to detriment.  The claimant appealed this decision. 

The EAT held that the Tribunal had erred in striking out the claims relating to race and religious discrimination.  The reason for this is that those issues should not normally be determined without hearing oral evidence.  There were no genuine concerns about the claimant’s performance in the role and the claimant had asserted that the manager was ‘against him’. This should have been explored through oral evidence.   Secondly, there was failure to heed the warning given in Malik v Birmingham CC relating to litigants in person.  There needs to be an examination of the pleaded case rather than expecting the litigant to explain their case properly under the pressure of questioning. The EAT stated this was important considering that the case was not listed for a strike out at the point at which it was struck out and that it was being conducted by telephone. As a result, the case was remitted back to the Tribunal to allow for the case to proceed to hearing on the race and religious discrimination claims.  

Practical Lessons

This case demonstrates a couple of important procedural points when it comes to a strike out. When it involves a litigant in person then there is a need for the Tribunal to consider all of the pleadings rather than focusing solely on the information gained through questioning of the claimant.  Additionally, when it comes to a strike out application there should be some oral evidence heard and the Tribunal should take the claimant’s case at its highest.  In this case, the fact that the case was not even listed for a strike-out hearing went against the finding being upheld.