Mr A Murphy v Il Baretto; and and 1 other — 2023

This was a preliminary hearing on the first respondent's application to strike out the claimant's race discrimination and victimisation claims under rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013. The claimant clarified after oral reasons that he was not pursuing direct disability discrimination or discrimination arising from disability, so the written reasons were confined to direct race discrimination, indirect race discrimination, and victimisation.

The tribunal held that the claims should not be struck out because they turned on disputed facts. Those included what Riccardo said after the claimant's trial shift for the pizza chef role, whether the respondents knew of the claimant's previous Employment Tribunal claims, whether there were two vacancies, whether the claimant could work in a fast-paced environment, and whether the claimant's English nationality and lack of Italian language ability were relevant to the recruitment decision. The tribunal accepted that there might be a non-discriminatory explanation, but said those matters had to be resolved at a final hearing on the evidence.

On the indirect race discrimination claim, the tribunal said it might fail if those who were not English and also not Italian were similarly disadvantaged by the alleged requirement to speak Italian, but that point depended on the composition of the pool and therefore on evidence. The tribunal also rejected the first respondent's submission that the claims were scandalous or vexatious, held that the existence of earlier tribunal claims did not make the present claim vexatious, and concluded that a fair trial remained possible.