Ms A Bukowska (1) Ms K Adamska (2) v Mizkan Euro Limited — 2021

This was an open preliminary hearing before Employment Judge K Welch sitting alone. The Claimants, Ms Bukowska and Ms Adamska, pursued indirect race discrimination complaints under section 19 Equality Act 2010 against their employer, Mizkan Euro Limited. The judgment records that earlier direct discrimination complaints under section 13 Equality Act 2010 had been withdrawn at a previous case management hearing and were not the subject of this decision.

The Tribunal considered and refined the PCP relied upon by the Claimants. It granted leave to amend so that the pleaded PCP was treated as a policy or practice requiring employees to speak English at all times, including during breaks and when the only other people in the room shared a common language that was not English. The Tribunal referred to Selkent Bus Co Ltd v Moore when considering amendment and concluded that, if required, the amendment would have been allowed in the interests of justice.

The Respondent's applications to strike out the indirect race discrimination claims under rule 37 and to impose deposit orders under rule 39 were both refused. The Tribunal applied the well-known caution in discrimination cases referred to in Ayanwu v South Bank Students Union, held that the high strike-out threshold had not been met, and said it could not conclude without hearing evidence that the claims had no reasonable prospects of success. It also declined to determine the limitation issue at this stage, noting that whether there was conduct extending over a period under section 123(3) Equality Act 2010 should be decided at a full merits hearing. No remedy was awarded because the judgment dealt only with preliminary case management issues.