Ms B Jozwiak [2300515/2022] Ms I Janicki [2300516/2022] Ms D Lysycz [2300517/2022] v AIM Commercial Cleaning Limited — 2024

The tribunal struck out the unfair dismissal claims under section 94 of the Employment Rights Act 1996 because the claimants had not satisfied the qualifying period required by section 108. Those claims did not proceed to a merits hearing.

The respondent's application to strike out the direct race discrimination claims was refused. The claimants relied on Polish nationality as the protected characteristic under section 9 of the Equality Act 2010. The tribunal accepted that employees of another employer on site were not valid comparators for this respondent, but found there was a more than trivial dispute of fact about the CCTV evidence and the evidential basis for the gross misconduct dismissals, and that all three claimants had been dismissed for the same conduct.

Applying the caution against striking out discrimination claims, including the guidance in Anyanwu, the judge was not satisfied that the claims had no reasonable prospect of success. The tribunal also rejected the separate Rule 37(1)(e) argument that a fair trial was impossible because the respondent's main witness had left, noting that he might still be found, that the respondent had known about the claims since February 2022, and that striking out would be highly prejudicial to the claimants. No monetary remedy was determined in this judgment.