Ms Senka Besirevic v Birmingham City Council — 2019

This was a preliminary hearing on the respondent's application to strike out parts of a claim involving disability discrimination and constructive unfair dismissal. The claimant relied on a series of alleged acts and omissions, many said to amount to disability discrimination, and the respondent challenged particular pleaded allegations as having no reasonable prospect of success.

The tribunal applied rule 37(1) of the Employment Tribunal Rules and noted the need for caution when striking out discrimination claims, particularly where facts are disputed. It accepted the respondent's argument that a number of section 15 Equality Act allegations were misconceived as pleaded because the alleged request, complaint, or requirement could not sensibly be the reason for the alleged unfavourable treatment in the way pleaded. The tribunal refused any implicit amendment to re-plead those allegations by reference to an alleged failure to take the claimant's disability seriously.

The tribunal struck out the specified bolded parts of Allegations 1.a, 3, 5, 7, 9, 12, 13, 22, 27, 29, 30, 31, 32, 33, 34 and 35. It did not strike out other section 15 allegations where the pleaded case included an assertion that the respondent's failure to take the claimant's disability seriously was a thing arising from disability, or allegations concerning working longer hours to reduce debit hours arising from disability-related absences. Those matters were left to proceed because the tribunal was not persuaded they had no reasonable prospect of success.