Ms L Millin, counsel For the v Respondent — 2022

This was a preliminary judgment on the Respondent’s strike out and deposit order application, heard on 31 March 2023, in the Claimant’s second claim against London Borough of Ealing. The Claimant had worked for the Respondent since 1 October 1988 and was dismissed on 4 August 2022 for unsatisfactory performance. The tribunal treated the second claim as including unfair dismissal, direct age and race discrimination, and victimisation, and it read the judgment in the present claim together with the earlier judgment in case 2206160/2021, which had dismissed the Claimant’s prior age and race discrimination claims about the earlier performance management process.

On the unfair dismissal case, the tribunal struck out the allegations that the Claimant was overworked, that the unsatisfactory performance procedure began without an appraisal, that the assessment of performance was inadequate, that she was given insufficient time to improve, and that there was no clear indication of what was required to improve performance. It held that those points had already been determined in the first claim, or were barred by issue estoppel / Henderson abuse of process. It did not strike out the remaining unfair dismissal allegations that the Respondent ignored her 33-year work history or failed properly to consider alternative work, which were left for the final hearing.

The tribunal also dealt with the age and race discrimination allegations in the further and better particulars. It struck out the allegation that the Claimant was invited to a Stage 3 performance review while on sick leave, and the allegation that the Respondent disregarded the evidence she gave at the dismissal hearing. It refused to strike out the allegation that Mrs Yates said the Claimant lacked the ability to perform a lower-grade role, and the linked allegation that dismissal rather than a lesser sanction was chosen, but found those allegations had little reasonable prospect of success and ordered a £25 deposit for each. The victimisation allegations based on the Stage 3 meeting, the dismissal decision, and the appeal decision were also allowed to continue only subject to £25 deposits for each allegation.

In deciding the strike out and deposit application, the tribunal referred to the earlier findings that there were significant performance concerns and ample cogent evidence supporting the Respondent’s process. It applied the unfair dismissal framework in s.98 ERA 1996, the reasonableness test in s.98(4), the capability dismissal authorities, and the discrimination burden of proof provisions in s.13, s.27 and s.136 EqA 2010. It also considered the res judicata and abuse of process authorities, including Henderson v Henderson, Johnson v Gore-Wood, Virgin Atlantic v Zodiac Seats, and London Borough of Haringey v O’Brien. No substantive compensation award was made in this judgment; the only monetary orders were deposits, with the tribunal assessing the Claimant’s means from evidence about pension income, mortgage outgoings, other monthly expenditure, and savings.