Ms X And v LBHF Family Support Services Ltd and 3 others — 2021

This was an open preliminary hearing on 7 October 2021, conducted by CVP, at which the third respondent applied to strike out certain elements of the claim. Employment Judge Nicolle applied the familiar strike-out principles in discrimination cases, citing Anyanwu and Mechkarov, and noted that core disputes of fact usually should not be determined without oral evidence. The application failed and no elements of the claim were struck out.

On the sexual harassment allegation, the claimant said that she had been subjected to a serious sexual assault by the second respondent in the course of employment. The tribunal accepted that the alleged lunch on a Friday during working time, attended by senior managers, was at least initially work-related, and held that it could not at this stage draw a firm line as to when, if at all, the event ceased to have that character. The tribunal also held that the fact that later events took place in a private dwelling house did not, by itself, make strike out appropriate. It treated issues of consent and course of employment as matters for evidence.

On victimisation, the tribunal considered the alleged protected acts, including the 15 September 2020 call with the HR adviser and the 11 December 2020 solicitor's letter, as well as subsequent communications. It then addressed the alleged detriments individually, including matters said to involve suspension, timescales, correspondence, access to the report, pressure to comment on the report, grievance steps, the grievance appeal, and the alleged failure to respond to a data subject access request. Although some allegations were described as potentially weak or duplicative, the tribunal held that none met the threshold for strike out. It also held that the redundancy-related allegations were at least arguable when looked at in totality, even though they were not pleaded as separate detriments.

The tribunal also refused to strike out the TUPE Regulation 15 allegations, which concerned alleged failures to carry out proper consultation and to provide the claimant with an opportunity to engage with the process and be informed about it. The tribunal said these matters required evidence, including as to what consultation had taken place and what arrangements were in place. The result was that the entire strike-out application failed and the claims remained live.