Claimant v O and Others — 2020

At the preliminary hearing on 21 January 2020, the tribunal dealt with strike out and deposit applications under Rules 37 and 39. The claimant conceded that R2 was not a legal entity, and the claim against R2 was struck out on that basis. The tribunal also struck out the victimisation allegation about pay: the invoices at issue were for PA services to R1, and contemporaneous emails showed that payment was delayed because the two invoices carried different bank account numbers, which had to be clarified before BACS payment could be released.

The remaining victimisation allegation about the alleged failure to follow the harassment policy was not struck out. The tribunal found it was open to argument that the claimant was covered by the policy because she was assisting R1 with Chambers-related professional work, including work away from Chambers, and it was not possible on a preliminary application to say she had no reasonable prospect of establishing that the policy applied. The tribunal therefore allowed that allegation to continue to the full merits hearing.

A separate victimisation allegation concerning the instructions to external counsel was treated differently. Although the tribunal considered paragraph 15 of the Terms of Reference to be evenly drafted, it held that this allegation had little rather than no reasonable prospect of success and ordered a deposit of £200 as a condition of continuing to advance it. In deciding the amount, the tribunal accepted the claimant's evidence that she was a single mother living on Universal Credit and Child Benefit, with no savings, rented accommodation, legal aid, and limited monthly income. The tribunal cited Rule 37, Rule 39, s.109 Equality Act 2010, Swain v Hillman, Anyanwu v South Bank Students' Union, and Chandhok v Tirkey in explaining the cautious approach to strike out in discrimination cases.