Ms K Gallafent QC (Counsel) v Respondent — 2020

This was a preliminary hearing on the respondent's application to strike out the claimant's claim for no reasonable prospects of success. The tribunal identified the key issue as whether it had jurisdiction to consider the claim at all, and recorded that the parties agreed s.192 of the ERA, as currently drafted, did not confer jurisdiction because the Secretary of State had not appointed a commencement date for those provisions.

The tribunal refused to strike out the claim at this stage. It noted that strike out is an exceptional order, that the claim had to be taken at its highest, and that it should consider whether case management directions would be more appropriate. The tribunal accepted the claimant's submission that he might amend his judicial review application once the respondent's response and any disclosure were received.

The tribunal also said it was not in a position to adjudicate on the merits of the claimant's prospects of success in the judicial review proceedings. Although it had copies of the parties' pre-action letters and the claimant's judicial review application, it did not have the respondent's response or any Administrative Court decision on permission to proceed when it decided the preliminary hearing. The result was that the strike-out application was rejected and no substantive determination of the underlying claim was made.