Ms Ashanti Amponsah First v The Estate of Dr O’Connell Second Respondent: Beatrix Schmidt — 2019

At the preliminary hearing on 16 September 2020, Employment Judge Wisby sat alone to determine the respondents' application to strike out the claims and, alternatively, to order deposits. The claimant, Ms Ashanti Amponsah First, had been an agency worker supplied by TPP from 28 June 2018 to 30 May 2019. The first respondent, a sole practitioner, had died on 9 October 2019; the tribunal relied on the earlier case management ruling that the claims could continue against the estate under s.1 of the Law Reform (Miscellaneous Provisions) Act 1934.

The tribunal refused strike out under Rule 37(1)(a) and 37(1)(e) of the 2013 Rules. It applied the usual caution that discrimination claims should only be struck out in the plainest and most obvious cases, and found no undisputed contemporaneous documents that conclusively disproved the claimant's case. It held that a fair hearing was still possible even though the first respondent could not give evidence in person, because he had already given instructions for the ET3, the estate was represented, and other evidence could come from documents, the second respondent, other witnesses, hearsay and circumstantial material.

The tribunal then made deposit orders under Rule 39 in respect of a number of specific allegations where it considered there was little reasonable prospect of success, including the mouldy-water office allegation, the alleged racist joke, the Jamaican-accent allegation, the pay allegation involving Ms Schmidt, and the DSAR, grievance and email allegations. It said several allegations against the second respondent were directed to the wrong party because the first respondent was responsible for the employment relationship and the responses complained of. No merits determination was made on the underlying race discrimination, sex discrimination, harassment, victimisation or whistleblowing complaints at this stage.