Mr D Flood, Counsel For the v Respondent — 2019

On 21 September 2020 at Norwich, Employment Judge S Moore considered the respondents' application to strike out the claimant's disability discrimination claims arising from the rejection of a pupillage application at 5 Essex Court. The claimant advanced claims of victimisation and discrimination arising from disability under sections 27 and 15 of the Equality Act 2010, based on the second respondent's role as chair of the pupillage committee and his email exchange with the Bar Council Ethics Enquiries Service.

The tribunal refused strike out. It accepted that the claims were highly doubtful, but held that the 13 February 2019 email exchange gave the claimant reason to suppose that things were not what they seemed: the second respondent had formed an unfavourable view, asked whether he could ethically convey that view to the person considering the application, and was told he could do so. That was enough to prevent a finding that the claims had no reasonable prospect of success at this stage, because the tribunal could not simply treat the witness evidence of the second respondent and Ms Wolfe as conclusive without cross-examination.

The tribunal nevertheless made a deposit order under rule 39(2). It held that the facts relied on would not of themselves give rise to an inference of discrimination under section 136 of the Equality Act 2010, because the second respondent did not himself reject the application, there was no evidence that he conveyed his views to Ms Wolfe before she marked it, and there were other credible non-discriminatory reasons why he might have held negative views about the claimant. The judge also said Ms Wolfe's marking explanation appeared to have a foundation in the application materials, and that the claimant would need to prove both communication of the second respondent's views and a link to disability and/or protected acts rather than the other reasons advanced by the respondents.

Because the two claims had overlapping evidence and similar prospects, the tribunal ordered a single £150 deposit covering both claims, payable within 21 days. The judge said the amount was relatively low because of the claimant's modest means and recent increase in family responsibilities.