Mr A Decker, Lay Representative For the v Mr O’Neill, Solicitor — 2021

This was a preliminary hearing on the respondent's application to strike out the claimant's indirect race discrimination claim, or alternatively to seek a deposit order. The claimant's separate unfair dismissal claim arising from his dismissal with effect from 25 November 2019 was noted as proceeding to a full hearing and was not decided at this stage.

The tribunal identified the relevant section 19 Equality Act 2010 test for indirect discrimination. The claimant, who described his race as Black African, first advanced a proposed PCP based on the respondent's supposed requirement for a positive Employment Checking Service confirmation from the Home Office, but that formulation was later abandoned. The PCP was then amended to a requirement that everyone working for the respondent must demonstrate a right to work in the UK, which the respondent accepted was a PCP it applied.

On disadvantage, the tribunal said the claimant would struggle to show that the putative disadvantaged group, described by his representative as non-EEA citizens married to EU nationals, comprised mainly Black Africans rather than other races. It also considered that he would have difficulty showing that he personally suffered the disadvantage said to arise from the PCP, given the submission that he had the documents proving his right to work and the evidence said to include a First-tier Tribunal decision promulgated on 14 November 2019 confirming permanent residence.

On justification, the tribunal accepted the respondent's stated aim of ensuring up-to-date immigration documents to minimise the risk of unlawful employment, and said a final tribunal was likely to find that requiring documents showing a right to work was a proportionate means of achieving that aim. For those reasons, the indirect race discrimination claim was found to have no reasonable prospects of success and was struck out.